Download Part 3--Massachusetts Rules of Criminal Procedure

PART 3
Massachusetts Rules of Criminal Procedure
Rule
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
Title; Scope
Purpose; Construction; Definition of Terms
Complaint and Indictment: Waiver of Indictment
Form and Contents of Complaint or Indictment; Amendment
The Grand Jury
Summons to Appear; Arrest Warrant
Initial Appearance and Arraignment
Assignment of Counsel
Joinder of Offenses or Defendants
Continuances
Pretrial Conference
Pleas and Withdrawals of Pleas
Pretrial Motions
Pretrial Discovery
Interlocutory Appeal
Dismissal by the Prosecution
Summonses for Witnesses
Presence of Defendant
Trial by Jury or by the Court
Trial Jurors
Sequestration of Witnesses
Objections
Statements and Reports of Witnesses for Impeachment
Opening Statements; Arguments; Instructions to Jury
Motion for Required Finding of Not Guilty
Requests for Rulings
Verdict
Judgment
Revision or Revocation of Sentence
Post Conviction Relief
Stay of Execution; Relief Pending Review
Filing and Service of Papers
Counsel for Defendants Indigent and Indigent But Able
to Contribute
Report
Depositions to Perpetuate Testimony
Case Management
Transfer of Cases
Disability of Judge
Records of Foreign Proceedings and Notice of Foreign Law
Proof of Official Records
Interpreters and Experts
Clerical Mistakes
Summary Contempt Proceedings
Contempt
Removal of the Disruptive Defendant
Time
Special Magistrates
Sanctions
RULE 1
Title; Scope
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable
to District Court and Superior Court.)
(a) Title.
These rules may be known and cited as the Massachusetts Rules of Criminal Procedure. (Mass.R.Crim.P.)
(b) Scope.
These rules govern the procedure in all criminal proceedings in the District Court, in all criminal proceedings
in the Superior Court, in all delinquency and youthful offender proceedings in the Juvenile Court, District Court
and Superior Court consistent with the General Laws, and
in proceedings for post-conviction relief.
RULE 2
Purpose; Construction; Definition of Terms
(Applicable to District Court and Superior Court.)
(a) Purpose; Construction
These rules are intended to provide for the just determination of every criminal proceeding. They shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of expense and delay.
(1) Words or phrases importing the singular number
may extend and be applied to several persons or things,
words importing the plural number may include the singular, and words importing the masculine gender may include the feminine and neuter.
(2) When in these rules reference is made to a subdivision of a rule, that reference is to that subdivision and to
any subdivisions thereof.
(b) Definition of Terms
In construing these rules the following words and
phrases shall have the following meanings unless a contrary intent clearly appears from the context in which they are
used:
(1) “Indigent” means any defendant who is unable to
procure counsel with his funds as defined in Supreme Judicial Court Rule 3:10.
(2) “Indigent but able to contribute” means any defendant who is unable to procure counsel with his funds
but is able to contribute funds for the cost of counsel as
defined in Supreme Judicial Court Rule 3:10.
(3) “Capital Crime” means a charge of murder in the
first degree.
(4) “Commonwealth” includes the prosecuting office
or agency and all officers or agents responsible thereto.
(5) “Court” includes a judge, special magistrate, or clerk.
(6) “District Attorney” or “Attorney General” include
assistant district attorneys or assistant attorneys general
and other attorneys specially appointed to aid in the prosecution of a case.
(7) “District Court” includes all divisions of the District
Court Department of the Trial Court, the Boston Municipal
Court Department of the Trial Court, and the Juvenile
Court Department of the Trial Court, or sessions thereof
for holding court.
(8) “Interested Person” includes the adverse party, a
co-defendant, and a witness who is to be deposed.
(9) “Judge” includes a judge of a court or one properly assigned to a court or a special magistrate when in the
performance of those duties imposed and authorized by
these rules.
3
3
594
Massachusetts Criminal Law Sourcebook & Citator 2013
(10) “Juvenile Court” means a division of the Juvenile
Court Department of the Trial Court, or a session thereof
for holding court.
(11) “Mailing” means the use of regular mail and shall
not require registered or certified mail.
(12) “Prosecuting Attorney” means the attorney general or assistant attorneys general, district attorney, assistant district attorneys, special assistant district attorneys, or
legal assistants to the district attorney, or other attorneys
specially appointed to aid in the prosecution of a case.
(13) “Prosecutor” means any prosecuting attorney or
prosecuting officer, and shall include a city solicitor, a
police prosecutor, or a law student approved for practice
pursuant to and acting as authorized by the rules of the
Supreme Judicial Court.
(14) “Related Offense” means one of two or more offenses which are based on the same criminal conduct or
episode or arise out of a course of criminal conduct or
series of criminal episodes connected together or constituting parts of a single scheme or plan.
(15) “Return Day” means the day upon which a defendant is ordered by summons to first appear or, if under
arrest, does first appear before a court to answer to the
charges against him, whichever is earlier.
(16) “Special Magistrate” means any person who is
appointed pursuant to, and empowered to administer those
functions authorized by, rule forty-seven of these rules.
(17) “Summons” means
(A) criminal process issued to a person requiring him
to appear at a stated time and place to answer to criminal
charges; or
(B) process issued to a person requiring him to appear
at a stated time and place to give testimony in a criminal
proceeding; or
(C) process issued to a person requiring him to appear
and produce at a stated time and place books, designated
papers, documents, or other objects for use in a criminal
proceeding.
(18) “Superior Court” means Superior Court Department of the Trial Court, or a session thereof for holding
court.
within the concurrent jurisdiction of the District and Superior Courts and the District Court retains jurisdiction.
(c) Waiver of Indictment.
(1) Right to Waive Indictment. A defendant charged in
a District Court with an offense as to which the defendant
has the right to be proceeded against by indictment shall
have the right, except when the offense charged is a capital
crime, to waive indictment, unless the Commonwealth proceeds by indictment pursuant to subdivision (e) of this rule.
(2) Procedure for Waiving Indictment. The defendant
may waive the right to be proceeded against by indictment
by filing a written waiver of that right in the District Court
prior to the determination to bind the case over to the Superior Court for trial. The District Court may for cause
shown grant relief from that waiver. After the determination by the District Court to bind the case over to the Superior Court for trial, the defendant may waive the right to be
proceeded against by indictment by filing a written waiver
of that right, with the consent of the prosecutor, in the Superior Court.
(d) Transmission of Papers.
If the defendant is bound over to the Superior Court
for trial after a finding of probable cause or after the defendant waives a probable cause hearing, the clerk of the
District Court shall transmit to the clerk of the Superior
Court a copy of the complaint and of the record; the original recognizances; a list of the witnesses; a statement of
the expenses and the appearance of the attorney for the
defendant, if any is entered; the waiver of the right to be
proceeded against by indictment, if any is executed; the
pretrial conference report, if any has been filed; and the
report of the department of mental health as to the mental
condition of the defendant, if such report has been filed
under the provisions of the General Laws.
(e) Indictment after Waiver.
Notwithstanding the defendant’s waiver of the right to
be proceeded against by indictment, the prosecuting attorney may proceed by indictment.
(f) Probable Cause Hearing.
Defendants charged in a District Court with an offense
as to which they have the right to be proceeded against by
indictment and defendants charged in a District Court with
an offense within the concurrent jurisdiction of the District
and Superior Courts for which the District Court will not
retain jurisdiction, have the right to a probable cause hearing, unless an indictment has been returned for the same
offense. If the District Court finds that there is probable
cause to believe that the defendant committed the crime or
crimes alleged in the complaint, the court shall bind the
defendant over to the Superior Court. If the District Court
finds that there is no probable cause to believe that the
defendant committed the crime or crimes alleged in the
complaint, the court shall dismiss the complaint.
(g) The Complaint Process.
(1) Procedure for Obtaining a Complaint. Any person
having knowledge, whether first hand or not, of the facts
constituting the offense for which the complaint is sought
may be a complainant. The complainant shall convey to
the court the facts constituting the basis for the complaint.
The complainant’s account shall be either reduced to writing or recorded. The complainant shall sign the complaint
under oath, before an appropriate judicial officer.
RULE 3
Complaint and Indictment: Waiver of Indictment;
Probable Cause Hearing
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable
to District Court and Superior Court.)
(a) Commencement of Criminal Proceeding.
A criminal proceeding shall be commenced in the
District Court by a complaint and in the Superior Court by
an indictment, except that if a defendant is charged in the
District Court with a crime as to which the defendant has
the right to be proceeded against by indictment and the
defendant has waived the right to an indictment pursuant
to subdivision (c), the Commonwealth may proceed in the
Superior Court upon the complaint.
(b) Right to Indictment.
A defendant charged with an offense punishable by imprisonment in state prison shall have the right to be proceeded
against by indictment except when the offense charged is
595
Massachusetts Rules of Criminal Procedure
(2) Probable Cause Requirement. The appropriate judicial officer shall not authorize a complaint unless the
information presented by the complainant establishes
probable cause to believe that the person against whom the
complaint is sought committed an offense.
RULE 3.1
Determination of Probable Cause for Detention
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.)
(a) No person shall be held in custody more than
twenty-four hours following an arrest, absent exigent circumstances, unless:
(i) a warrant or other judicial process authorizes the
person’s detention,
(ii) a complaint has been authorized under Rule 3(g), or
(iii) a determination of probable cause for detention
has been made pursuant to subsection (b).
(b) A determination of probable cause for detention
shall be made by an appropriate judicial officer. The appropriate officer shall consider any information presented
by the police, whether or not known at the time of arrest.
The police shall present the information under oath or affirmation, or under the pains and penalties of perjury. The
police may present the information orally, in person or by
any other means, or in writing. If presented in writing, the
information may be transmitted to the appropriate judicial
officer by facsimile transmission or by electronic mail or
by such other electronic means as may be found acceptable by the court. The determination of probable cause for
detention shall be an ex parte proceeding. The person arrested has no right to appear, either in person or by counsel.
(c) Where subsection (a) requires a determination of
probable cause for detention, the police shall present the
information necessary to obtain such determination to the
appropriate judicial officer as soon as reasonably possible
after the arrest, but no later than twenty-four hours after
arrest, absent exigent circumstances.
(d) The judicial officer shall promptly reduce to writing his or her determination as to probable cause and notify the police. A copy of the written determination shall be
transmitted to the police, by facsimile transmission or other means, as soon as possible.
(e) The judicial officer shall apply the same standard
in making the determination of probable cause for detention as in deciding whether an arrest warrant should issue.
If the judicial officer determines that there is probable
cause to believe the person arrested committed an offense,
the judicial officer shall make a written determination of
his or her decision which shall be filed with the record of
the case together with all the written information submitted by the police.
(f) If there is no probable cause to believe that the person arrested committed an offense, the judicial officer shall
order the person’s prompt release from custody. The order
and a written determination of the judicial officer shall be
filed in the District Court having jurisdiction over the location of the arrest, together with all the written information
submitted by the police. These documents shall be filed
separately from the records of criminal and delinquency
cases, but shall be public records.
RULE 4
Form and Contents of Complaint or Indictment;
Amendment
(Applicable to District Court and Superior Court.)
(a) Contents of Indictment or Complaint
An indictment and a complaint shall contain a caption
as provided by law, together with a plain, concise description of the act which constitutes the crime or an appropriate legal term descriptive thereof.
(b) Subscription of Application for Issuance of Process
An application for issuance of process may be subscribed by the arresting officer, the police chief, or any
police officer within the jurisdiction of a crime, a prosecutor, or a private person.
(c) Indictment Based Upon Secondary Evidence
An indictment shall not be dismissed on the grounds
that the evidence presented before the grand jury consisted
in whole or in part of the record from the defendant’s
probable cause hearing or that other hearsay evidence was
presented before the grand jury.
(d) Amendment
Upon his own motion or the written motion of either
party, a judge may allow amendment of the form of a
complaint or indictment if such amendment would not
prejudice the defendant or the Commonwealth.
NOTE 1
See G.L. c. 268, § 1A.
NOTE 2
Description of Defendant. “We conclude that the
criminal prosecution of the defendant. . . is not time barred. In
reaching this conclusion, we hold that: (1) the description of ‘John
Doe’ in the indictment, primarily consisting of his genetic identity,
comported with the particularity requirements of art. 12 of the Declaration of Rights of the Massachusetts Constitution; and (2) the
return of such an indictment tolled the fifteen-year statute of limitations for aggravated rape and rape as set out in G.L. c. 277, § 63.”
Commonwealth v. Dixon, 458 Mass. 446, 447 (2010).
RULE 5
The Grand Jury
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable to
Superior Court.)
(a) Summoning Grand Juries.
As prescribed by law, the appropriate number of jurors shall be summoned in the manner and at the time required, from among whom the court shall select not more
than twenty-three grand jurors to serve in said court as
long as and at those specific times required by law, or as
required by the court.
The regular grand jury shall be called upon and directed to sit by the Chief Justice of the Superior Court Department whenever within his or her discretion the conduct
of regular criminal business and timely prosecution within
a particular county so dictate. Notwithstanding the foregoing, special grand juries shall be summoned in the manner
prescribed by the General Laws.
(b) Foreperson, Foreperson Pro Tem, Clerk, Clerk Pro
Tem.
After the grand jurors have been impaneled they shall
retire and elect one of their number as foreperson. The
foreperson and the prosecuting attorney shall have the
power to administer oaths and affirmations to witnesses
who appear to testify before the grand jury, and the foreperson shall, under his or her hand, return to the court a
3
3
596
Massachusetts Criminal Law Sourcebook & Citator 2013
list of all witnesses sworn before the grand jury during the
sitting. If the foreperson is unable to serve for any part of
the period the grand jurors are required to serve, a foreperson pro tem shall be elected in the same manner as provided
herein for election of the foreperson. The foreperson pro
tem shall serve until the foreperson returns or for the remainder of the term if the foreperson is unable to return.
The grand jury may also appoint one of their number as
clerk to be charged with keeping a record of their proceedings, and, if the grand jury so directs, to deliver such record to the attorney general or district attorney. If the clerk
is unable to serve for any part of the period the grand jurors
are required to serve, a clerk pro tem may be appointed.
(c) Who May be Present.
Attorneys for the Commonwealth who are necessary
or convenient to the presentation of the evidence, the witness under examination, the attorney for the witness, and
such other persons who are necessary or convenient to the
presentation of the evidence may be present while the
grand jury is in session. The attorney for the witness shall
make no objections or arguments or otherwise address the
grand jury or the prosecuting attorney. No witness may
refuse to appear because of unavailability of counsel for
that witness.
(d) Secrecy of Proceedings and Disclosures.
The judge may direct that an indictment be kept secret
until after arrest. In such an instance, the clerk shall seal
the indictment and no person may disclose the finding of the
indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function
in relation to the grand jury may not disclose matters occurring before the grand jury except in the performance of
his or her official duties or when specifically directed to do
so by the court. No obligation of secrecy may be imposed
upon any person except in accordance with law.
(e) Finding and Return of Indictment.
An indictment may be found only upon the concurrence of twelve or more jurors. The indictment shall be
returned by the grand jury to a judge in open court.
(f) No Bill; Discharge of Defendant.
The grand jury shall during its session make a daily
return to the court of all cases as to which it has determined not to present an indictment against an accused.
Each such complaint shall be endorsed “no bill” and shall
be filed with the court.
If upon the filing of a no bill the accused is held on
process, he or she shall be discharged unless held on other
process.
(g) Deliberation.
The prosecuting attorney shall not be present during
deliberation and voting except at the request of the grand jury.
(h) Discharge.
A grand jury shall serve until the first sitting of the
next authorized grand jury unless it is discharged sooner
by the court or unless its service is extended to complete
an investigation then in progress.
grand jury to return an indictment. Id.” Commonwealth v. Shea,
401 Mass. 731, 734 (1988).
NOTE 1
“In order to sustain his claim of impairment of the
integrity of the grand jury proceedings, the defendant bears a
heavy burden. Under Commonwealth v. Mayfield, 398 Mass. 615,
621 (1986), the defendant must show that the prosecutor knowingly introduced false or deceptive evidence. In addition, the defendant must demonstrate that the evidence probably influenced the
NOTE 2
“Unlike the case of Commonwealth v. O’Dell [392
Mass. 445 (1984)], the omissions here did not distort the material
that was presented to the grand jury, and we have repeatedly held
that the mere withholding of exculpatory evidence without more is
not a proper ground for dismissal of an indictment. Commonwealth
v. McGahee, 393 Mass. 743, 746–747 (1985). Commonwealth v.
O’Dell, supra at 447.” Commonwealth v. Pina, 406 Mass. 540, 549
(1990). See also Commonwealth v. O’Dell, 392 Mass. 445, 447
(1984) (Commonwealth does not have obligation to present all
potentially exculpatory evidence to the grand jury); Commonwealth
v. Levesque, 436 Mass. 443, 455–56 (2002) (same).
NOTE 3
“As a general rule, a court will not inquire into the
quality of evidence heard by a grand jury unless ‘extraordinary
circumstances’ are present. The court has previously identified two
such extraordinary circumstances where judicial inquiry is warranted: (1) when it is unclear that sufficient evidence was presented to the grand jury to support a finding of probable cause to believe that the defendant committed the offense charged in the
indictment; and (2) when the defendant contends that the integrity
of the grand jury proceedings somehow has been impaired. The
defendant’s claim implicates the second of these situations.
“Reference to a defendant’s criminal record before a grand
jury is clearly undesirable, and, in some circumstances, such reference may involve serious risk of prejudice. This is not such a
case. The disputed comments were made in response to a grand
juror’s question; they were not offered gratuitously by the police
officer or by the prosecutor. The reference to the past warrant was
generally responsive to the grand juror’s question, and did not
exceed the scope of that question. The information furnished was
not false or deceptive, and there is nothing to show that it was
furnished with the intention of obtaining the indictments. Further,
the prosecutor curtailed the line of questioning shortly after it had
commenced. We do not discern here any blatant attempt to whet
the jurors’ appetite with information which could not serve as a
basis for an indictment.
“In addition, the defendant has not proved that the disputed
statements, viewed in the context of all the evidence presented to
the grand jury, ‘probably made a difference’ in their decision to
indict him.”
Commonwealth v. Freeman, 407 Mass. 279, 282–83 (1990)
(quotation marks, citations, and footnotes omitted).
NOTE 4
The prosecutor used a grand jury subpoena to obtain records of the defendant. The evidence was not presented to
the grand jury, but was used at trial.
Held, while this was “an abuse of the grand jury subpoena
power . . . the improper action of the district attorney did not ‘seriously impair’ the integrity of the grand jury, and did not prejudice
the defendant in the proceedings before that body.”
Commonwealth v. Cote, 407 Mass. 827, 831 (1990) (citation
omitted).
NOTE 5
Elements of Crime. “The Commonwealth is not
required to inform a grand jury of the elements of the offense for
which it seeks an indictment or of any lesser included offenses.”
Commonwealth v. Noble, 429 Mass. 44, 48 (1999).
NOTE 6
Grand Jurors Voting to Indict Need Not Hear All
Evidence Presented Against Defendant. “The defendant’s discovery motion is predicated on the argument that the requirement
in Mass. R. Crim. P. 5(e), 378 Mass. 850 (1979), of a ‘concurrence’ of at least twelve grand jurors to return an indictment, mandates that ‘a core of at least twelve grand jurors heard all of the
evidence and voted to indict.’ He asserts that the word ‘concurrence’ ‘presumes that a grand juror has been present to hear all of
the evidence presented before joining in a decision to indict,’ and,
that such an obligation is necessitated by the grand jurors’ oath,
see G.L. c. 277, § 5. The defendant urges us to follow ‘[t]he betterreasoned decisions from other jurisdictions’ that ‘recognize that an
informed grand jury that truly concurs to indict, based on hearing
all of the evidence, ensures the integrity of the grand jury process.’
Massachusetts Rules of Criminal Procedure
We decline to add such a requirement to rule 5.” Commonwealth
v. Wilcox, 437 Mass. 33, 34–35 (2002).
RULE 6
Summons to Appear; Arrest Warrant
(Applicable to District Court and Superior Court.)
(a) Issuance of Process
(1) Summons. A defendant not under arrest or otherwise in custody shall, except as provided in subdivision
(a)(2) of this rule, be notified of the criminal proceedings
against him and of the date of the return day by means of a
summons. A copy of the complaint or indictment shall
accompany the summons. If the accused is a juvenile, a
summons and copy of the complaint or indictment shall
also be served upon the parent or legal guardian of the
juvenile or upon the person with whom the juvenile resides. Such notice shall also advise the defendant to report
in person to the probation department before the return day.
(2) Warrant. The District Court may authorize the issuance of a warrant in any case except where the accused
is a juvenile less than twelve years of age. Upon the return
of an indictment against a defendant, the Superior Court
may authorize the issuance of a warrant. The decision to
issue a warrant may be based upon the representation of a
prosecutor made to the court that the defendant may not
appear unless arrested. If a defendant fails to appear in
response to a summons or for any reason is not amenable
to service, the prosecutor may request that a warrant issue
or may resummon the defendant.
(b) Form
(1) Warrant. An arrest issued pursuant to this rule shall
be signed by the official issuing it and shall contain the
name of the defendant or, if his name is unknown, any
name or description by which he can be identified with
reasonable certainty. The warrant shall recite the substance
of the offense charged in the complaint or indictment. It
shall command that the defendant be arrested and brought
before the court.
(2) Summons. A summons shall be in the same form
as a warrant except that it shall summon the defendant to
appear before the court at a stated time and place.
(c) Service or Execution; Return
(1) By Whom. A summons may be served in the manner provided by subdivision (c)(3) of this rule by any person authorized by the General Laws to serve criminal process. A warrant shall be directed to and executed by an
officer authorized by the General Laws to serve criminal
process.
(2) Territorial Limits. A summons may be served or a
warrant executed at any place within the Commonwealth.
(3) Manner. A summons shall be served upon a defendant by delivering a copy to him personally, or by leaving it at his dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein, or by mailing it to the defendant’s last known address. A warrant shall be executed by the arrest of the defendant. The officer need not have the warrant in his possession at the time of the arrest, but upon request he shall
show the warrant to the defendant as soon as possible. If
the officer does not have the warrant in his possession at
the time of the arrest, he shall then inform the defendant
that a warrant has issued and of the offense charged, but if
597
the officer does not then know of the offense charged, he
shall inform the defendant thereof within a reasonable
time after arrest.
(4) Return. On or before the return day, the person to
whom a summons was delivered for service shall make
return thereof to the issuing court. The clerk shall maintain
a list of those summonses returned unserved which shall
include a statement of the efforts made by the person to
whom the summonses were delivered for service to serve
them. If a summons is mailed pursuant to subdivision
(c)(3) of this rule and returned, the clerk shall record that
fact upon the list. The officer executing a warrant shall
make return thereof to the issuing court. At the request of
the prosecutor any unexecuted warrant shall be returned to
the issuing court and may be canceled by that court upon
its own motion or upon the motion of the prosecutor. At
the request of the prosecutor made at any time while a
complaint or an indictment is pending, a summons returned unserved or a warrant returned unexecuted and not
cancelled may be delivered to an authorized person for
service or execution.
(d) Default
(1) Costs. A judge may order that expenses incurred
as a result of the entry of a default against a defendant are
to be assessed as costs against the defendant.
(2) Preservation of Testimony. If counsel for a defendant is present upon the entry of a default against the defendant and if the judge finds that to require the attendance
at a later time of a witness then present in court would
constitute a hardship upon the witness because of age,
infirmity, illness, profession or other sufficient reason, the
judge may order that the testimony of the witness be taken
and preserved for subsequent use at trial or any other proceeding. The witness shall be examined in open court by
the party on whose behalf he is present and the adverse
party shall have the right of cross-examination. The expense of taking and preserving the testimony may be assessed as costs against the defendant.
NOTE
“The defendant argues that the assessment of $50 in
costs against him when he failed to appear on June 3 was improper.
We agree. . . . The Reporters’ Notes to the rule [6(d)(1)] indicate
that ‘[w]hile the assessment is discretionary, it is intended to be
exercised only upon the willful default of a defendant and as to
those costs which directly result therefrom’. . . . No hearing was
held to determine whether the defendant’s default was wilful or
‘solid.’ Thus, the costs were improperly assessed because there
was no basis on which the judge could determine whether the
defendant’s default was wilful.
“The assessment also was improper because it does not reflect any actual expenses resulting directly from the defendant’s
default.”
Lastly, the court noted that the defendant “was entitled to a
hearing on the default” and “the right to be represented by counsel.”
Commonwealth v. Gomes, 407 Mass. 206, 209–11 (1990) (citations omitted).
3
598
Massachusetts Criminal Law Sourcebook & Citator 2013
RULE 7
Initial Appearance and Arraignment
mitting an appearance slip, which shall include the name,
Board of Bar Overseers number, address, and telephone
number of the attorney. An attorney appearing on behalf of
an organization shall also file with the court proof of the
attorney's authorization to represent the organization.
(2) Effect; Withdrawal. An appearance shall be in the
name of the attorney who files the appearance and shall
constitute a representation that the attorney shall represent
the defendant for trial or plea or shall prosecute the case,
except that, if at the arraignment such a representation
cannot be made and no contrary legal restriction applies,
(1) the court may permit an appearance to be entered by an
attorney to represent the defendant or prosecute the case
for such time as the court may order, and (2) the court
shall permit an appearance in the name of the prosecuting
agency, which shall constitute representations that the
agency will prosecute the case, will ensure that throughout
the duration of the appearance a prosecutor is assigned to
the case, and upon request of the court or a party will identify the prosecutor assigned to the case. If the attorney who
files an appearance for the defendant on or before the arraignment wishes to withdraw the appearance, he or she
may do so within fourteen days of the arraignment, provided that the attorney who shall represent the defendant at
trial files an appearance simultaneously with such withdrawal; thereafter no appearance shall be withdrawn without permission of the court. The appearance of the prosecuting officer shall be withdrawn only with permission of
the court.
(3) Notice. A copy of all appearances and withdrawals
of appearance shall be filed and shall be served upon the
adverse party pursuant to Rule 32.
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date; further
amended effective June 1, 2012.) (Applicable to District Court and Superior Court.)
3
(a) Time of Arraignment; Probation Interview; Indigency and Bail Reports
(1) Upon Arrest or Summons. A defendant who has
been arrested and is not released shall be brought for arraignment before a court if then in session; and if not, at its
next session. A defendant who receives a summons or who
has been arrested but is thereupon released shall be ordered to appear before the court for arraignment on a date
certain.
(2) Arrest of a Juvenile. Upon the arrest of a juvenile,
the arresting officer shall notify the parent or guardian of
the juvenile and the probation office.
(3) Probation Interview. On the day of the arraignment, the probation department shall interview the defendant; the probation department shall report to the court the
pertinent information reasonably necessary to determine
the issues of bail and indigency.
(b) Arraignment Procedure.
(1) Notice; Plea; and Bail. The court shall:
(A) read the charges to the defendant in open court,
except that the reading of the charges in open court may be
waived by the defendant if he or she is represented by
counsel;
(B) enter the defendant's plea to the charges;
(C) inform the defendant of all warnings and advisories required by law; and,
(D) determine the conditions of the defendant's release, if any.
(2) Appointment of Counsel. If the court finds that the
defendant is indigent or indigent but able to contribute and
has not knowingly waived the right to counsel under the
procedures established in Supreme Judicial Court Rule
3:10, the Committee for Public Counsel Services shall be
assigned to provide representation for the defendant.
(3) Provision of Criminal Record; Preservation of Evidence. The court shall ensure that at or before arraignment, (i) a copy of the defendant's criminal record, if any,
as compiled by the Commissioner of Probation is provided
to the defense and to the prosecution, and (ii) the parties
are afforded an opportunity to move for the preservation of
evidence pursuant to Rule 14(a)(1)(E).
(4) Order Scheduling Pretrial Proceedings. At a District Court arraignment on a complaint which is outside of
the District Court's final jurisdiction or on which jurisdiction is declined, the court shall schedule the case for a
probable cause hearing. In all other District and Superior
Court cases the court shall issue an order at arraignment
requiring the prosecuting attorney and defense counsel to
(1) engage in a pretrial conference on a date certain, and
(2) appear at a pretrial hearing on a specified subsequent
date.
(c) Appearance of Counsel.
(1) Filing. An appearance shall be entered by the attorney for the defendant and the prosecuting attorney on or
before the arraignment. The appearance may be entered
either by personally appearing before the clerk or by sub-
NOTE
“The defendant argues that the delay of approximately forty-nine days between return of the indictment and the
time of his arraignment in Superior Court requires dismissal of the
indictment. There is no authority in Massachusetts for dismissal of
an indictment because of a delay in arraignment. ‘Dismissal of
indictments is a drastic remedy for official misconduct.’ Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860
(1983). Even in the case of a delay in bringing a defendant into
court for the first time after arrest, see Mass. R. Crim. P. 7(a)(1),
as amended, 397 Mass. 1225 (1986), the defendant’s remedy is
suppression of evidence obtained from him during that delay. In
the present case, no evidence was obtained from the defendant
between indictment and arraignment. . . .
“[T]he defendant has not shown any prejudice to his case,
nor has he shown intentional misconduct on the part of the Commonwealth or any unfair advantage to the Commonwealth—
especially in the form of evidence obtained during the delay. Thus,
there is no basis for dismissal of the indictment.”
Commonwealth v. Sanchez, 403 Mass. 640, 646–47 (1988)
(footnotes and citations omitted).
RULE 8
Assignment of Counsel
(Applicable to District Court and Superior Court.)
If a defendant charged with a crime for which a sentence of imprisonment or commitment to the custody of
the Department of Youth Services may be imposed initially
appears in any court without counsel, the judge shall follow the procedures established in G.L. c. 211D and in Supreme Judicial Court Rule 3:10.
Massachusetts Rules of Criminal Procedure
RULE 9
Joinder of Offenses or Defendants
(Applicable to District Court and Superior Court.)
(a) Joinder of Offenses
(1) Related Offenses. Two or more offenses are related
offenses if they are based on the same criminal conduct or
episode or arise out of a course of criminal conduct or
series of criminal episodes connected together or constituting parts of a single scheme or plan.
(2) Joinder of Related Offenses in Complaint or Indictment. If two or more related offenses are of the same
or similar character, they may be charged in the same indictment or complaint, with each offense stated in a separate count.
(3) Joinder of Related Offenses for Trial. If a defendant is charged with two or more related offenses, either
party may move for joinder of such charges. The trial
judge shall join the charges for trial unless he determines
that joinder is not in the best interests of justice.
(4) Joinder of Unrelated Offenses. Upon the written
motion of a defendant, or with his written consent, the trial
judge may join for trial two or more charges of unrelated
offenses upon a showing that failure to try the charges
together would constitute harassment or unduly consume
the time or resources of the parties. The trial judge shall
join the charges for trial unless he determines that the
joinder is not in the best interests of justice.
(b) Joinder of Defendants
Two or more defendants may be joined in the same
indictment or complaint if the charges against them arise
out of the same criminal conduct or episode or out of a
course of criminal conduct or series of criminal episodes
so connected as to constitute parts of a single scheme,
plan, conspiracy or joint enterprise. The defendants may
be charged separately or together in one or more counts;
all of the defendants need not be charged in each count.
(c) Consolidation of Offenses or Defendants on Motion
of Court
The trial judge may order two or more indictments or
complaints to be tried together if the offenses and the defendants, if more than one, could have been joined in a
single indictment or complaint. The procedure shall be the
same as if the prosecution were under a single indictment
or complaint.
(d) Relief from Prejudicial Joinder
(1) In General. If it appears that a joinder of offenses
or of defendants is not in the best interests of justice, the
judge may upon his own motion or the motion of either
party order an election of separate trials of counts, grant a
severance of defendants, or provide whatever other relief
justice may require.
(2) Motion by the Defendant. A motion of the defendant for relief from prejudicial joinder shall be in writing
and made before trial and shall be supported by an affidavit setting forth the grounds upon which any alleged prejudice rests, except that a motion for severance may be
made before or at the close of all the evidence if based
upon a ground not previously known.
(e) Conspiracy
An indictment or complaint for conspiracy to commit
a substantive offense shall not be tried simultaneously with
599
an indictment or complaint for the commission of the substantive offense, unless the defendant moves for joinder of
such charges pursuant to subdivision (a) of this rule.
NOTE 1
Joinder of Defendants. “More importantly, no matter how inconsistent or antagonistic the defenses or trial strategies
of the two defendants, there is no compelling prejudice and therefore no requirement of severance where the jury were warranted in
finding Raposo guilty of the crime of aggravated rape on the basis
of the eyewitness testimony of the bartender and Raposo’s own
properly admitted confession. Commonwealth v. Sinnott, 399
Mass. 863, 874–75 (1987). See United States v. Palow, 777 F.2d
52, 55 (1st Cir. 1985), cert. denied, 475 U.S. 1052 (1986) (‘severance not required when joinder has resulted in the admission of
evidence that would have been admissible in a separate trial’).”
Commonwealth v. Cordeiro, 401 Mass. 843, 853 (1988).
NOTE 2
“Defendant MacLean claims that the trial judge erred
in denying his motion to sever the trials under Bruton v. United
States, 391 U.S. 123 (1968). According to Bruton, severance is
constitutionally required where: a codefendant’s extrajudicial
statements are offered in evidence at a joint trial; the statements
are ‘clearly inadmissible’ as against the defendant; the codefendant is not subject to cross-examination because he does not testify; and finally, there is a substantial possibility that, in determining
the defendant’s guilt, the jury relied on the codefendant’s ‘powerfully incriminating extrajudicial statements’ notwithstanding any
limiting instructions from the judge. Id. at 128 & n.3, 135–36.”
Commonwealth v. Pontes, 402 Mass. 311, 314 (1988) (citations
omitted).
NOTE 3
“At a joint trial of two or more defendants, therefore,
the admission in evidence of the extra-judicial statement of a nontestifying codefendant which inculpates another defendant is violative of the latter’s right to confrontation under the Sixth Amendment to the United States Constitution. . . .
“[The Supreme Court in Cruz v. New York, 481 U.S. 186, 193
(1987)] held that a limiting instruction could not validate the admission of ‘interlocking’ confessions at a joint trial.”
Commonwealth v. Dias, 405 Mass. 131, 135–36 (1989).
NOTE 4
“The appropriate standard, set out in Cruz v. New
York, 481 U.S. 186 (1987), is that, unless a nontestifying codefendant’s statement incriminating the defendant is directly admissible against the defendant, the confrontation clause bars its admission at their joint trial. Id. at 193.
“The Cruz case holds that a violation of the confrontation
clause in this manner may, in some instances, be harmless error
beyond a reasonable doubt. Id. at 194. This court has decided that
it will apply a stringent test to determine if a Bruton error is harmless beyond a reasonable doubt. The test is whether the ‘spillover,’
which is created by those portions of statements that do not perfectly interlock, was without effect on the jury and did not contribute to the verdict.”
Commonwealth v. Cunningham, 405 Mass. 646, 649 (1989)
(citations and quotation marks omitted).
NOTE 5
Joinder of Offenses. “In particular, the propriety of
joining any one of the six indictments turns, in large measure, on
whether evidence of the other five offenses would have been admissible at a separate trial on each indictment. It is settled that
evidence of other criminal conduct is inadmissible to prove the
propensity of the defendant to commit the indicted offense. Such
evidence can be used, however, to show a common scheme,
pattern of operation, absence of accident or mistake, identity, intent, or motive.” Commonwealth v. Mamay, 407 Mass. 412, 417
(1990) (citations and quotation marks omitted).
NOTE 6
“Joinder is a matter committed to the sound discretion of the trial judge. The defendant bears the burden of showing
that joinder was improper.” Commonwealth v. Wilson, 427 Mass.
336, 345 (1998) (citations and quotation marks omitted).
NOTE 7a
Related Offenses. “Offenses are ‘related’ when the
evidence in its totality shows a common scheme and pattern of
operation that tends to prove all the indictments.” Commonwealth
3
3
600
Massachusetts Criminal Law Sourcebook & Citator 2013
v. Simpson, 434 Mass. 570, 575–76 (2001) (citations and quotation marks omitted).
other case, the court may in its discretion rule on a continuance motion without a hearing, provided that all parties
have had an adequate opportunity to file an opposition to
the motion. If the court continues the case without a hearing, defendant’s counsel shall inform the defendant of the
revised date. Any motion filed pursuant to this subdivision
shall provide one or more proposed continuance dates and
state all supporting grounds, and any factual allegations
shall be supported by affidavit.
(b) Assessment of Costs
When a continuance is granted upon the motion of either the Commonwealth or the defendant without adequate
notice to the adverse party, causing the adverse party to
incur unnecessary expenses, a judge may in his discretion
assess those expenses as costs against the party or counsel
requesting the continuance.
(c) Preservation of Testimony
A judge may order as a condition upon the granting of
a continuance that the testimony of a witness then present
in court be taken and preserved for subsequent use at trial
or any other proceeding. The witness shall be examined in
open court by the party on whose behalf he is present and
the adverse party shall have the right of cross-examination.
The expense of taking and preserving the testimony shall be
assessed as costs against the party requesting the continuance.
NOTE 7b
“Factors such as time and location play an important
role in determining whether offenses are related. However, our
cases have allowed considerable differences with respect to these
factors and other factual circumstances. [For example,], joinder
[was] proper where multiple offenses occurred in different locations
over [a] period of three months [and] where offenses involved six
different victims and other factual differences over [a] period of
eight months.” Commonwealth v. Wilson, 427 Mass. 336, 345–46
(1998) (citations omitted).
NOTE 8
Undue Prejudice. The question whether the failure
to sever the indictments resulted in undue prejudice must be decided in the context of the guarantee of a fair trial for every defendant. The question turns, in large measure, on whether evidence of the defendant’s other offenses would have been admissible at a separate trial on each set of indictments. However, this
is not dispositive. Nonetheless, a defendant must show that any
prejudice resulting from a joint trial is so compelling that it prevented him from obtaining a fair trial. It is not enough for the defendant
to show merely that his chances for acquittal would have been
better had the indictments been tried separately. Nor is it enough
for the defendant simply to claim that he wanted to testify regarding some charges, but not others.” Commonwealth v. Wilson, 427
Mass. 336, 346 (1998) (citations and quotation marks omitted).
RULE 10
Continuances
(Amended effective Dec. 1, 1997.) (Applicable to District Court and
Superior Court.)
(a) Continuances
(1) After a case has been entered upon the trial calendar, a continuance shall be granted only when based upon
cause and only when necessary to insure that the interests
of justice are served.
(2) The factors, among others, which a judge shall
consider in determining whether to grant a continuance in
any case are:
(A) Whether the failure to grant a continuance in the
proceeding would be likely to make a continuation of the
proceeding impossible, or result in a miscarriage of justice.
(B) Whether the case taken as a whole is so unusual or
so complex, because of the number of defendants or the
nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation of the case at the time it
is scheduled for trial.
(C) Whether the overall caseload of defense counsel
routinely prohibits his making scheduled appearances,
whether there has been a failure of diligent preparation by
a party, and whether there has been a failure by a party to
use due diligence to obtain available witnesses.
(3) An attorney who is to be otherwise engaged in a
trial, evidentiary hearing, or appellate argument so as to
require a continuance shall notify the court and the adverse
party or the attorney for the adverse party of such conflicting engagement not less than twenty-four hours before the
scheduled appearance, or within such other time as is reasonable under the circumstances.
(4) A motion for a continuance may include a request
that the court rule on the motion without a hearing. If such
a motion is filed at least three court days prior to the
scheduled appearance or trial date and indicates that all
parties have agreed to the continuance, the court shall,
prior to the scheduled date, rule on the motion without a
hearing unless it deems a hearing to be necessary. In any
NOTE 1
“Ordinarily, the granting of a continuance rests in the
sound discretion of the trial judge, and a denial of a continuance
will not constitute error absent an abuse of that discretion. In considering a request for a continuance, a trial judge should balance
the movant’s need for additional time against the possible inconvenience, increased costs, and prejudice which may be incurred
by the opposing party if the motion is granted. He must also give due
weight to the interest of the judicial system in avoiding delays which
would not measurably contribute to the resolution of a particular
controversy.” Commonwealth v. Mamay, 407 Mass. 412, 419–20
(1990) (quotation marks and citations omitted).
RULE 11
Pretrial Conference
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable to
District Court and Superior Court.)
(a) The Pretrial Conference.
At arraignment, except on a complaint regarding
which the court will not exercise final jurisdiction, the
court shall order the prosecuting attorney and defense
counsel to attend a pretrial conference on a date certain to
consider such matters as will promote a fair and expeditious disposition of the case. The defendant shall be available for attendance at the pretrial conference. The court
may require the conference to be held at court under the
supervision of a judge or clerk-magistrate.
(1) Conference Agenda. Among those issues to be discussed at the pretrial conference are:
(A) Discovery and all other matters which, absent
agreement of the parties, must be raised by pretrial motion.
All motions which cannot be agreed upon shall be filed
pursuant to Rule 13(d).
(B) Whether the case can be disposed of without a trial.
(C) If the case is to be tried, (i) the setting of a proposed trial date which shall be subject to the approval of
the court and which when fixed by the court shall not be
changed without express permission of the court; (ii) the
Massachusetts Rules of Criminal Procedure
probable length of trial; (iii) the availability of necessary
witnesses; and (iv) whether issues of fact can be resolved
by stipulation.
(2) Conference Report.
(A) Filing. A conference report, subscribed by the
prosecuting attorney and counsel for the defendant, and
when necessary to waive constitutional rights or when the
report contains stipulations as to material facts, by the defendant, shall be filed with the clerk of the court pursuant
to subdivision (b)(2)(i). The conference report shall contain
a statement of those matters upon which the parties have
reached agreement, including any stipulations of fact, and
a statement of those matters upon which the parties could
not agree which are to be the subject of pretrial motions.
Agreements reduced to writing in the conference report
shall be binding on the parties and shall control the subsequent course of the proceeding.
(B) Failure to File. If a party fails to participate in a
pretrial conference or to cooperate in the filing of a conference report, the adverse party shall notify the clerk of
such failure. If a conference report is not filed and a party
does not appear at the pretrial hearing, no request of that
party for a continuance of the trial date as scheduled shall
be granted and no pretrial motion of that party shall be
permitted to be filed, except by leave of court for cause
shown. If the parties fail to file a conference report or do
not appear at the pretrial hearing, the case shall be presumed to be ready for trial and shall be scheduled for trial
at the earliest possible time. The parties shall be subject to
such other sanctions as the judge may impose.
(b) The Pretrial Hearing.
At arraignment, except on a complaint regarding
which the court will not exercise final jurisdiction, the
court shall order the prosecuting attorney and defense
counsel to appear before the court on a date certain for a
pretrial hearing. The defendant shall be available for attendance at the hearing. The pretrial hearing may include
the following events:
(1) Tender of Plea. The defendant may tender a plea,
admission or other requested disposition, with or without
the agreement of the prosecutor.
(2) Pretrial Matters. Unless the Court declines jurisdiction over the case or disposes of the case at the pretrial
hearing, the pretrial hearing shall include the following
events:
(i) Filing of Pretrial Conference Report. The prosecuting attorney and defense counsel shall file the pretrial conference report with the clerk of court.
(ii) Discovery and Pretrial Motions. The court shall
hear all discovery motions pending at the time of the pretrial hearing. Other pending pretrial motions may be heard
at the pretrial hearing, continued to a specified date for a
hearing, or transmitted for hearing and resolution by the
trial session.
(iii) Compliance and Trial Assignment. The court
shall determine whether the pretrial conference report is
complete, all discovery matters have been resolved, and
compliance with all discovery orders has been accomplished. If so, the court shall obtain the defendant’s decision on waiver of the right to a jury trial, and assign a trial
date or trial assignment date. If completion of either the
pretrial conference report or discovery is still pending, the
601
court shall schedule and order the parties to appear for a
compliance hearing pursuant to Rule 11(c) unless the aggrieved party waives the right to a compliance hearing.
(iv) The court may issue such additional orders as will
promote the fair, speedy and orderly disposition of the case.
(c) Compliance Hearing.
A compliance hearing ordered pursuant to Rule
11(b)(2)(iii) shall be limited to the following court actions:
(1) determining whether the pretrial conference report
and discovery are complete and, if necessary, hearing and
deciding discovery motions and ordering appropriate sanctions for non-compliance;
(2) receiving and acting on a tender of plea or admission; and
(3) if the pretrial conference report and discovery are
complete, obtaining the defendant’s decision on waiver of
the right to a jury trial, and scheduling the trial date or trial
assignment date.
NOTE 1
Late Disclosure of Exculpatory Evidence. “As we
stated in Commonwealth v. Lam Hue To, 391 Mass. 301, 308
(1984), where there is ‘an agreement with the force of a court
order to disclose all exculpatory evidence, three factors are considered in determining whether the prosecutor violated his constitutional duty in failing to disclose exculpatory evidence prior to trial
and whether remedial action is required. We consider the exculpatory and material nature of the evidence, and whether the delay in
disclosing it prejudiced the defendant’ (emphasis supplied). At the
outset, we note that the alleged exculpatory evidence in this case
was revealed prior to trial, albeit after the agreed date of October 15,
1984. In a similar case, we stated: In determining the consequences
of late disclosure, a court should consider whether, given a timely
disclosure, the defense would have been able to prepare and
present its case in such a manner as to create a reasonable doubt
that would not otherwise have existed.’’ Commonwealth v. Paradise, 405 Mass. 141, 150 (1989) (citations and internal quotation
marks omitted).
NOTE 2
“The defendant claims that the judge’s refusal to
grant permission to call Sergeant Mann, a witness not listed on the
pretrial conference report, violated the defendant’s State and Federal due process rights to present a defense. . . .
“A trial judge has the power to enforce agreements contained
in a pretrial conference report, and can take remedial action to
remedy a violation of these agreements. Commonwealth v. Chappee, [397 Mass. 508 (1986)] at 517. Commonwealth v. Gliniewicz,
398 Mass. 744, 747 (1986). This remedial power has been held to
allow the exclusion of witnesses not listed on a pretrial conference
report, subject to a balancing of the ‘the Commonwealth’s interest
in enforcing its procedural rules against the defendant’s constitutional right to present evidence in his behalf.’ Commonwealth v.
Chappee, [397 Mass.] at 517–518.
“In Commonwealth v. Chappee, supra, we laid out the factors
which must be taken into account in assessing such a balance.
They include: (1) prevention of surprise; (2) evidence of bad faith
in the violation of the conference report; (3) prejudice to the other
party caused by the testimony; (4) the effectiveness of less severe
sanctions; and (5) the materiality of the testimony to the outcome
of the case.”
Commonwealth v. Durning, 406 Mass. 485, 494–96 (1990).
NOTE 3
Disclosure of Expert Testimony Required by PTC
Report. “The pretrial conference report required disclosure of
every expert opinion to be produced at trial. The defendant claims
that the Commonwealth failed to disclose that its serologist would
opine that ‘blood spatter’ on the defendant’s shirt indicated that
‘some force’ was used to deliver the blow. The judge should not
have allowed this testimony. The prosecutor’s proffer that, because the serologist was an ‘expert,’ she could testify to her observations and opinions, was an inadequate response. The defendant was entitled to notice that the serologist would give an
3
602
Massachusetts Criminal Law Sourcebook & Citator 2013
opinion as to blood spatter.” Commonwealth v. Garrey, 436 Mass.
422, 440 (2002).
(c) Guilty Plea Procedure.
After being informed that the defendant intends to
plead guilty or nolo contendere:
(1) Inquiry. The judge shall inquire of the defendant
or defense counsel as to the existence of and shall be informed of the substance of any agreements that are made
which are contingent upon the plea.
(2) Recommendation as to Sentence or Disposition.
(A) Contingent Pleas. If there were sentence recommendations contingent upon the tender of the plea, the
judge shall inform the defendant that the court will not
impose a sentence that exceeds the terms of the recommendation without first giving the defendant the right to
withdraw the plea.
(B) Disposition Requested by Defendant. In a District
Court, if the plea is not conditioned on a sentence recommendation by the prosecutor, the defendant may request
that the judge dispose of the case on any terms within the
court’s jurisdiction. The judge shall inform the defendant
that the court will not impose a disposition that exceeds
the terms of the defendant’s request without first giving the
defendant the right to withdraw the plea.
(3) Notice of Consequences of Plea. The judge shall
inform the defendant on the record, in open court:
(A) that by a plea of guilty or nolo contendere, or an
admission to sufficient facts, the defendant waives the right
to trial with or without a jury, the right to confrontation of
witnesses, the right to be presumed innocent until proved
guilty beyond a reasonable doubt, and the privilege against
self-incrimination;
(B) where appropriate, of the maximum possible sentence on the charge, and where appropriate, the possibility
of community parole supervision for life; of any different
or additional punishment based upon subsequent offense
or sexually dangerous persons provisions of the General
Laws, if applicable; where applicable, that the defendant
may be required to register as a sex offender; and of the
mandatory minimum sentence, if any, on the charge;
(C) that if the defendant is not a citizen of the United
States, the guilty plea, plea of nolo contendere or admission may have the consequence of deportation, exclusion
of admission, or denial of naturalization.
(4) Tender of Plea. The defendant’s plea or admission
shall then be tendered to the court.
(5) Hearing on Plea; Acceptance. The judge shall
conduct a hearing to determine the voluntariness of the
plea or admission and the factual basis of the charge.
(A) Factual Basis for Charge. A judge shall not accept
a plea of guilty unless the judge is satisfied that there is a
factual basis for the charge. The failure of the defendant to
acknowledge all of the elements of the factual basis shall
not preclude a judge from accepting a guilty plea. Upon a
showing of cause the tender of the guilty plea and the
acknowledgement of the factual basis of the charge may be
made on the record at the bench.
(B) Acceptance. At the conclusion of the hearing the
judge shall state the court’s acceptance or rejection of the
plea or admission.
(C) Sentencing. After acceptance of a plea of guilty or
nolo contendere or an admission, the judge may proceed
with sentencing.
RULE 12
Pleas and Withdrawals of Pleas
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable to
District Court and Superior Court.)
3
(a) Entry of Pleas.
(1) Pleas Which May Be Entered and by Whom. A defendant may plead not guilty, or guilty, or with the consent
of the judge, nolo contendere, to any crime with which the
defendant has been charged and over which the court has
jurisdiction. A plea of guilty or nolo contendere shall be
received only from the defendant personally except pursuant to the provisions of Rule 18. Pleas shall be received in
open court and the proceedings shall be recorded. If a defendant refuses to plead or if the judge refuses to accept a
plea of guilty or nolo contendere, a plea of not guilty shall
be entered.
(2) Admission to Sufficient Facts. In a District Court, a
defendant may, after a plea of not guilty, admit to sufficient facts to warrant a finding of guilty.
(3) Acceptance of Plea of Guilty, a Plea of Nolo Contendere, or an Admission to Sufficient Facts. A judge may
refuse to accept a plea of guilty or a plea of nolo contendere or an admission to sufficient facts. The judge shall not
accept such a plea or admission without first determining
that it is made voluntarily with an understanding of the
nature of the charge and the consequences of the plea or
admission.
(b) Plea Conditioned Upon an Agreement.
(1) Formation of Agreement; Substance. The defendant and defense counsel or the defendant when acting pro
se may engage in discussions with the prosecutor as to any
recommendation to be made to a judge or any other action
to be taken by the prosecutor upon the tender of a plea of
guilty or nolo contendere to a charged offense or to a lesser included offense. The agreement of the prosecutor may
include:
(A) Charge Concessions.
(B) Recommendation of a particular sentence or type
of punishment with the specific understanding that the
recommendation shall not be binding upon the court.
(C) Recommendation of a particular sentence or type
of punishment which may also include the specific understanding that the defendant shall reserve the right to request a lesser sentence or different type of punishment.
(D) A general recommendation of incarceration without regard to a specific term or institution.
(E) Recommendation of a particular disposition other
than incarceration.
(F) Agreement not to oppose the request of the defendant for a particular sentence or other disposition.
(G) Agreement to make no recommendation or to take
no action.
(H) Any other type of agreement involving recommendations or actions.
(2) Notice of Agreement. If defense counsel or the
prosecutor has knowledge of any agreement that was made
contingent upon the defendant’s plea, he or she shall inform the judge thereof prior to the tender of the plea.
603
Massachusetts Rules of Criminal Procedure
(6) Refusal to Accept an Agreed Sentence Recommendation. If the judge determines that the court will impose a
sentence that will exceed an agreed recommendation for a
particular sentence or type of punishment under subdivision (b)(1)(C) of this rule, an agreed recommendation for a
particular disposition other than incarceration under subdivision (b)(1)(E), or a request for disposition in a District
Court by the defendant under subdivision (c)(2)(B), after
having informed the defendant as provided in subdivision
(c)(2) that the court would not do so, the judge shall, on
the record, advise the defendant personally in open court
or on a showing of cause, in camera, that the judge intends
to exceed the terms of the plea recommendation or request
for disposition and shall afford the defendant the opportunity to then withdraw the plea or admission. The judge
may indicate to the parties what sentence the judge would
impose.
(d) Deleted.
(e) Availability of Criminal Record and Presentence
Report.
The criminal record of the defendant shall be made
available. Upon the written motion of either party made at
the tender of a plea of guilty or nolo contendere, the
presentence report as described in subdivision (d)(2) of
Rule 28 shall be made available to the prosecutor and
counsel for the defendant for inspection. In extraordinary
cases, the judge may except from disclosure parts of the
report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program of
rehabilitation, sources of information obtained upon a
promise of confidentiality, or any other information which,
if disclosed, might result in harm, physical or otherwise, to
the defendant or other persons. If the report is not made
fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence.
No party may make any copy of the presentence report.
(f) Inadmissibility of Pleas, Offers of Pleas, and Related
Statements.
Except as otherwise provided in this subdivision, evidence of a plea of guilty, or a plea of nolo contendere, or
an admission, or of an offer to plead guilty or nolo contendere or an admission to the crime charged or any other
crime, later withdrawn, or statements made in connection
with, and relevant to, any of the foregoing pleas or offers,
is not admissible in any civil or criminal proceedings
against the person who made the plea or offer. However,
evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or a plea of nolo
contendere, or an admission or an offer to plead guilty or
nolo contendere or an admission to the crime charged or
any other crime, is admissible in a criminal proceeding for
perjury if the statement was made by the defendant under
oath, on the record, and in the presence of counsel, if any.
NOTE 1
Affidavit. “Whether an affidavit must accompany a
new trial motion that relies solely on the contemporaneous record
of the guilty plea proceeding has not been explicitly decided previously. We conclude that the rule does not impose such a requirement.” Commonwealth v. Sherman, 68 Mass. App. Ct. 797, 800
(2007).
NOTE 2
Tactics. “[A] defendant attacking a conviction based
upon a guilty plea has a choice between two tactics. He may stand
on the contemporaneous record, the record made in the case
through the stage of the colloquy and conviction. If the defendant
chooses this route, it is not open to the Commonwealth to introduce extraneous evidence tending to show that the defendant in
fact acted freely and intelligently in tendering the plea. . . . Alternatively, the defendant may offer extraneous evidence to supplement
(or contradict) the record, but in that event the Commonwealth has
a like right to offer evidence. When a defendant has received a
constitutionally inadequate plea colloquy, he is entitled to withdraw
that plea. Consequently, a defendant who challenges the intelligence or voluntariness of his plea and relies solely on the contemporaneous record of the proceeding for that challenge need do no
more than file with his motion a copy of the record of the plea proceeding being challenged. The record will then establish the constitutional adequacy or inadequacy of the colloquy.” Commonwealth v. Sherman, 68 Mass. App. Ct. 797, 800 (2007) (quotations
and citations omitted).
NOTE 3
“A slip in the protocol prescribed by rule 12 does not
entitle a defendant to withdraw a guilty plea if it did not significantly
affect the substance of the particular requirement.” Commonwealth v. Sherman, 68 Mass. App. Ct. 797, 805 (2007) (quotations
and citations omitted).
NOTE 4
Vacating Plea. “This case presents the. . . question
whether the Commonwealth has the authority to require a judge to
vacate a defendant’s guilty plea where the Commonwealth made a
charge concession as part of the plea agreement and the judge
imposes a sentence less severe than the agreed sentence recommendation. We conclude that the Commonwealth does not
have this authority under Mass. R. Crim. P. 12. . . or G.L. c. 278,
§ 18. We further conclude that if the guilty plea were to be vacated
at the prosecution’s request and over the objection of the defendant, double jeopardy would bar further prosecution on that
charge.” Commonwealth v. Dean-Ganek, 461 Mass. 305, 305–06
(2012).
RULE 13
Pretrial Motions
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date.) (Applicable to
District Court and Superior Court.)
(a) In General.
(1) Requirement of Writing and Signature; Waiver. A
pretrial motion shall be in writing and signed by the party
making the motion or the attorney for that party. Pretrial
motions shall be filed within the time allowed by subdivision (d) of this rule.
(2) Grounds and Affidavit. A pretrial motion shall state
the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity. If there are multiple charges, a motion filed pursuant to this rule shall specify the particular charge to
which it applies. Grounds not stated which reasonably
could have been known at the time a motion is filed shall
be deemed to have been waived, but a judge for cause
shown may grant relief from such waiver. In addition, an
affidavit detailing all facts relied upon in support of the
motion and signed by a person with personal knowledge of
the factual basis of the motion shall be attached.
(3) Service and Notice. A copy of any pretrial motion
and supporting affidavits shall be served on all parties or
their attorneys pursuant to Rule 32 at the time the originals
are filed. Opposing affidavits shall be served not later than
one day before the hearing. For cause shown the requirements of this subdivision (3) may be waived by the court.
(4) Memoranda of Law. The judge or special magistrate may require the filing of a memorandum of law, in
such form and within such time as he or she may direct, as
3
3
604
Massachusetts Criminal Law Sourcebook & Citator 2013
a condition precedent to a hearing on a motion or interlocutory matter. No motion to suppress evidence, other than
evidence seized during a warrantless search, and no motion to dismiss may be filed unless accompanied by a
memorandum of law, except when otherwise ordered by
the judge or special magistrate.
(5) Renewal. Upon a showing that substantial justice
requires, the judge or special magistrate may permit a pretrial motion which has been heard and denied to be renewed.
(b) Bill of Particulars.
(1) Motion. Within the time provided for the filing of
pretrial motions by this rule or within such other time as
the judge may allow, a defendant may request or the court
upon its own motion may order that the prosecution file a
statement of such particulars as may be necessary to give
both the defendant and the court reasonable notice of the
crime charged, including time, place, manner, or means.
(2) Amendment. If at trial there exists a material variance between the evidence and bill of particulars, the
judge may order the bill of particulars amended or may
grant such other relief as justice requires.
(c) Motion to Dismiss or to Grant Appropriate Relief.
(1) All defenses available to a defendant by plea, other
than not guilty, shall only be raised by a motion to dismiss
or by a motion to grant appropriate relief.
(2) A defense or objection which is capable of determination without trial of the general issue shall be raised
before trial by motion.
(d) Filing.
Only pretrial motions the subject matter of which
could not be agreed upon at the pretrial conference shall
be filed with the court.
(1) Discovery Motions. Any discovery motions shall
be filed prior to the conclusion of the pretrial hearing, or
thereafter for good cause shown. A discovery motion filed
after the conclusion of the pretrial hearing shall be heard
and considered only if (A) the discovery sought could not
reasonably have been requested or obtained prior to the
conclusion of the pretrial hearing, (B) the discovery is
sought by the Commonwealth, and the Commonwealth
could not reasonably provide all discovery due to the defense prior to the conclusion of the pretrial hearing, or (C)
other good cause exists to warrant consideration of the
motion.
(2) Non-discovery Pretrial Motions. A pretrial motion
which does not seek discovery shall be filed before the
assignment of a trial date pursuant to Rule 11(b) or (c) or
within 21 days thereafter, unless the court permits later
filing for good cause shown.
(e) Hearing on Motions.
The parties shall have a right to a hearing on a pretrial
motion. The opposing party shall be afforded an adequate
opportunity to prepare and submit a memorandum of law
prior to the hearing.
(1) Discovery Motions. All pending discovery motions
shall be heard and decided prior to the defendant’s election
of a jury or jury-waived trial. Any discovery matters pending at the time of the pretrial hearing or the compliance
hearing shall be heard at that hearing. Discovery motions
filed pursuant to subdivision (d)(1) after the defendant’s
election shall be heard and decided expeditiously.
(2) Non-Discovery Pretrial Motions. A non-discovery
motion filed prior to the pretrial hearing may be heard at
the pretrial hearing, at a hearing scheduled to address the
motion, or at the trial session. A non-discovery motion
filed at or after the pretrial hearing shall be heard at the
next scheduled court date unless otherwise ordered.
(3) Within seven days after the filing of a motion, or if
the motion is transmitted to the trial session within seven
days after the transmittal, the clerk or the judge shall assign a date for hearing the motion, but the judge or special
magistrate for cause shown may entertain such motion at
any time before trial. If the parties have agreed to a mutually convenient time for the hearing of a pretrial motion,
and the moving party so notifies the clerk in writing at the
time of the filing of the motion, the clerk shall mark up the
motion for hearing at that time subject to the approval of
the court. The clerk shall notify the parties of the time set
for hearing the motion.
NOTE 1a
Suggestive Identification Procedure. “On a motion
to suppress a pretrial photographic identification, the question is
whether ‘the procedures employed in the showing of the photographic arrays . . . were so unnecessarily suggestive and conducive to mistaken identification as to deny the defendant due process of law. Stovall v. Denno, 388 U.S. 293, 301–302 (1965).
Commonwealth v. Venios, 378 Mass. 24, 26–27 (1979). Should
such a showing be made, the burden then on the Commonwealth,
if it wishes to use evidence of the identification at trial, is that “of
establishing by ‘clear and convincing evidence’ that the proffered
identification has a source independent of the suggestive confrontation.” Commonwealth v. Botelho, 369 Mass. 860, 865–868
(1976). Venios, supra (emphasis added). Commonwealth v. Correia, 381 Mass. 65, 77–78 (1980). It also may be that a pretrial
identification following an impermissively suggestive procedure
would be made admissible by a clear and convincing demonstration that the proffered identification is ‘reliable’ within the less strict
standard of Manson v. Brathwaite, 432 U.S. 98 (1977). We need
not decide that question. In any event, the independent source
and reliability tests are no part of the judicial inquiry where, as
here, the procedures in showing the photographic arrays were not
suggestive. When the procedures are not suggestive, the pretrial
identifications are admissible without a further showing. ‘The question raised by a motion to suppress identification testimony is not
whether the witness was or might be mistaken but whether any
possible mistake was or would be the product of improper suggestions made by the police.’ Commonwealth v. Paszko, 391 Mass.
164, 172 (1984) (quoting Commonwealth v. Gordon, 6 Mass. App.
Ct. 230, 237 (1978)). See Commonwealth v. Bowie, 25 Mass. App.
Ct. 70, 75 (1987).” Commonwealth v. Warren, 403 Mass. 137, 139
(1988).
NOTE 1a(1) The Supreme Judicial Court answered the question
posed in Warren. “Only a rule of per se exclusion can ensure the
continued protection against the danger of mistaken identification
and wrongful convictions. Accordingly, we reject Brathwaite and
affirm our confidence in the Botelho approach.” Commonwealth v.
Johnson, 420 Mass. 458, 472 (1995).
“In deciding whether a particular confrontation was unnecessarily suggestive, the judge is to consider the totality of the circumstances. Additionally, in determining whether a separate identification has a source independent of the unnecessarily suggestive identification, the judge considers the following factors: (1) The
extent of the witness’s opportunity to observe the defendant at the
time of the crime; prior errors, if any, (2) in description, (3) in identifying another person or (4) in failing to identify the defendant; (5)
the receipt of other suggestions; and (6) the lapse of time between
the crime and the identification.” Johnson, 420 Mass. at 463–64
(citations and quotation marks omitted).
NOTE 1b
“Once the judge concluded that the police photographic identification procedures were valid, the witnesses’ reliabil-
Massachusetts Rules of Criminal Procedure
ity was no longer at issue on the motion to suppress.” Commonwealth v. Smith, 403 Mass. 1002, 1003 (1988) (rescript).
NOTE 1c
In-court Identification. “A Wakefield police officer
showed a photograph of the juvenile to the victim after his arrest
and told her that the juvenile was charged with the assault on her.
This act was impermissibly suggestive, and the Commonwealth
does not argue otherwise. It does argue, however, that the victim’s
identification is admissible because it has shown by clear and
convincing evidence that the identification had a source independent of the suggestive confrontation or was otherwise reliable. In
effect the Commonwealth is arguing that, as a matter of law, the
evidence shows clearly and convincingly that the victim’s identification testimony would be free from the taint of the improper confrontation.” The court rejected this argument. Commonwealth v. A
Juvenile, 402 Mass. 275, 280 (1988) (citations omitted).
NOTE 1d
Identification (Show-Ups). The Supreme Judicial
Court in Commonwealth v. Santos, 402 Mass. 775 (1988), was
faced with two separate show-ups. One was found permissible,
the other not.
Concerning the impermissible show-up, the court stated:
“With regard to one-on-one confrontations, we have said that,
while disfavored, such identifications are not subject to a per se
rule of exclusion. Commonwealth v. Storey, 378 Mass. 312, 317
(1979), cert. denied, 446 U.S. 955 (1980). See Commonwealth v.
Torres, 367 Mass. 737, 740 (1975). ‘Although such confrontations
pose particularly serious dangers of suggestiveness, we would
consider it ill advised to exclude as constitutionally unacceptable
all evidence that has been derived from single person confrontations simply because these identification procedures might have
taken place just as easily in the form of lineups.’ Storey, supra.
See Commonwealth v. Barnett, 371 Mass. 87, 91, 92 (1976), cert.
denied, 429 U.S. 1049 (1977). Our test is simply whether, in light
of the ‘totality of the circumstances,’ the identification procedure
was so unnecessarily suggestive and conducive to irreparable
mistaken identification” as to deny the defendant due process of
law.’ Commonwealth v. Venios, 378 Mass. 24, 27 (1979) (quoting
Stovall v. Denno, 388 U.S. 293, 301–302 (1967)).” Santos, 402
Mass. at 781.
The show-up was unnecessarily suggestive as the witness,
who had Down syndrome, gave no indication from his description
“that he saw the defendant for a sufficient length of time to enable
him to make a subsequent identification of the defendant.” Santos,
402 Mass. at 781. Additionally, “at the stationhouse Santos was
the only nonuniformed black person in the office at the time of
Bartick’s identification.” Santos, 402 Mass. at 782.
“[T]estimony corroborating the unconstitutional identification
must be excluded as well.” Santos, 402 Mass. at 784.
As for the permissible identification, the court noted that “the
identification was made immediately following the defendant’s
apprehension, and after both witnesses had been shown another
suspect whom they both determined was not involved in Maxwell’s
murder.” Santos, 402 Mass. at 783.
“‘[T]he police procedure of arranging these showups is recognized as usual and natural and justified by the need for efficient
investigation in the immediate aftermath of crime. . . . To have the
witness view the suspect while his recollection or mental image of
the offender is still fresh, before other images crowd in or his attempts to verbalize his impressions can themselves distort the
original picture, provides the witness with good opportunity for an
accurate identification. . . . A further consideration is that prompt
confrontation yielding a negative result, besides freeing the innocent, informs the police that a possible predisposition on their part
is or may be in error and releases them quickly to follow another
track.’ (Citations omitted.) Commonwealth v. Barnett, 371 Mass.
87, 92 (1976).” Santos, 402 Mass. at 784.
NOTE 1e
Photo Identification. “We disapprove of an array of
photographs which distinguishes one suspect from all the others
on the basis of some physical characteristic.” Commonwealth v.
Thornley, 406 Mass. 96, 100 (1989) (quotation marks and citations
omitted).
605
NOTE 1e(1) “We reject the defendant’s argument . . . that the
inclusion of the defendant’s photograph in the March 21 array after
the same photograph (different print) had been included in the
first, two hundred photograph array, requires suppression. See
Commonwealth v. Paszko, 391 Mass. 164, 169–71 (1984), and
cases collected there.” Commonwealth v. Dinkins, 415 Mass. 715,
721 (1993).
NOTE 2a
Miranda, Motion to Dismiss. “After the officer had
handcuffed the wounded defendant, but before any Miranda warnings had been given, he asked the defendant where his partner
was. The defendant answered, ‘I don’t know. I fell and became
weak.’
“After a voir dire hearing during trial, the judge denied the defendant’s motion to suppress his admittedly custodial statement.
The judge did so on the basis of New York v. Quarles, 467 U.S.
649, 657 (1984), in which the Court stated that ‘the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.’ We need not
decide whether the rule of the Quarles case applies (or would be
extended) to a situation in which the safety of police and not of the
public generally (as in the Quarles case) is threatened,2 because
in this case the defendant introduced his own statement during the
cross-examination of the Pembroke police sergeant. That appears
to have been a tactical choice.
“Although the Quarles opinion speaks generally of ‘public
safety’ (id. at 651, 656, 657), there is some suggestion in the opinion that objectively warranted concerns for police safety as well as
for public safety might also justify not applying the Miranda rule.
See id. at 658–659. Compare United States v. Eaton, 676
F. Supp. 362, 366 (D.Me. 1988), (‘the safety of the arresting officers was at high risk’), with State v. Hazley, 428 N.W.2d 406, 411
(Minn. App. 1988) (‘[m]issing accomplices cannot be equated with
missing guns in the absence of evidence that the accomplice presents a danger to the public’ requiring immediate police action).”
Commonwealth v. Bourgeois, 404 Mass. 61, 66 n.2 (1989).
NOTE 2b
“Miranda warnings are only necessary for ‘custodial
interrogations.’ Commonwealth v. Bryant, 390 Mass. 729, 736
(1984). The judge could conclude that the defendant was not in
custody when the police asked, ‘What happened?’ This simple
question, posed to the defendant by the police on discovery of a
dead body, ‘was a proper preliminary inquiry not requiring Miranda
warnings.’ Commonwealth v. Podlaski, 377 Mass. 339, 343
(1979). It was directed to discovering generally what the defendant
knew about the circumstances of the victim’s death. See id.;
Commonwealth v. Borodine, 371 Mass. 1, 4–5 (1976), cert. denied, 429 U.S. 1049 (1977); Commonwealth v. Doyle, 12 Mass.
App. Ct. 786, 793–794 (1981). Suspicion had not focused on the
defendant, and the questioning was neither aggressive nor overbearing. Commonwealth v. Podlaski, supra. See Commonwealth
v. Bryant, supra at 738–739. The fact that the police probably
would not have allowed the defendant to leave until he talked to
them does not by itself make the situation custodial. See id.;
Commonwealth v. Podlaski, supra. Thus, there was no error in the
judge’s determination that the defendant was not in custody when
the police asked him, ‘What happened?’” Commonwealth v. Callahan, 401 Mass. 627, 630 (1988) (footnote omitted).
NOTE 2c
Right to Remain Silent. “There should be no comments on the defendant’s claim of his rights under the Fifth
Amendment to the United States Constitution. Where such statements have been presented to the jury in order to prejudice the
defendant for exercising his rights, reversible error has been
found.” Commonwealth v. Habarek, 402 Mass. 105, 110 (1988).
NOTE 2d
Police Promises. “The judge did not find that any
promise had been made, and the evidence was conflicting. Even if
the judge had found that Detective Scire told Carey it would be
‘better’ for him to admit to ownership if the jacket and gun were
his, the conclusion that the defendant’s admissions were involuntary would not be required. Initiation by the police interrogator of a
discussion regarding leniency or a deal for the defendant, if the
3
3
606
Massachusetts Criminal Law Sourcebook & Citator 2013
latter is forthcoming, is one of the many factors taken into consideration in assessing the voluntariness of a defendant’s confession
or self-criminating statement. A police officer may not assure the
defendant that cooperation ‘will aid the defense or result in a lesser sentence.’ Commonwealth v. Shine, 398 Mass. 641, 652
(1986). That is not the same as a broad suggestion that it would
be ‘better’ for the defendant to tell the truth. Id.”
Commonwealth v. Carey, 407 Mass. 528, 538 (1990) (citation
omitted).
tive of the fact that his ‘mind was not overtaken by drugs.’ Id. In
short, the question was one of credibility for the finder of fact and
we shall not substitute our judgment for that of the trial judge.”
Commonwealth v. Bousquet, 407 Mass. 854, 861–62 (1990)
(citation omitted).
NOTE 2e
Suppression of Statement. The defendant was
charged with murder. He told two court officers, at the early stages
of the case, probable cause, “‘Tell them I’ll plead guilty to manslaughter. I don’t give a shit what happens to me. They can kill me.
I don’t care.’”
The Supreme Judicial Court ruled that the trial judge was correct in suppressing the statement, as “in an exercise of discretion
[he found that] the probative value of the evidence was clearly
outweighed by its likely prejudicial effect. . . .
“We have consistently held that a judge has discretion to exclude a particular piece of evidence if the judge concludes that the
probative worth of the evidence is outweighed by the prejudicial
effect it may have on the jury. . . .
“The evidence here had little unambiguous probative value.
The defendant’s statement—’Tell them I’ll plead guilty to manslaughter’—did not amount to a confession because it is neither ‘a
direct acknowledgement of guilt of the precise crime charged [n]or
of all facts necessary to establish guilt of that crime.’ P.J. Liacos,
Massachusetts Evidence, 296–97 (5th ed. 1981). See Commonwealth v. Haywood, 247 Mass. 16, 18 (1923). The statement is not
clearly an admission either. ‘An admission in a criminal case is a
statement by the accused, direct or implied, of facts pertinent to
the issue, which although insufficient in itself to warrant a conviction tends in connection with proof of other facts to establish his
guilt.’ Commonwealth v. Bonomi, 355 Mass. 327, 347 (1957).”
Commonwealth v. Lewin (No. 2), 407 Mass. 629, 630–31
(1990).
NOTE 2f
“On appeal, the defendant argues only that because
he chose not to answer certain questions during interrogation, the
officers should have asked him if he wanted to stop the interrogation. He contends that his refusal to reply to certain questions was
a reassertion of his right to silence, and that the failure of the officers to ask him whether he wanted to stop the interrogation requires suppression of his statements. We do not agree.” Commonwealth v. Roberts, 407 Mass. 731, 733 (1990).
NOTE 2g
“[E]ven if the judge accepted as a fact that a defendant was suffering from mental retardation and mental impairment,
it does not follow that the judge must rule that the statements were
involuntary per se. A statement is inadmissible if it would not have
been obtained but for the effects of the confessor’s mental disease. After a hearing, the judge concluded that any mental impairment that the defendant suffered did not impede his ability to
waive his Miranda rights and make a voluntary statement. . . .
“In reviewing a judge’s determination that a voluntary waiver
was made, the judge’s subsidiary findings will not be disturbed
unless there is clear error.”
Commonwealth v. Libran, 405 Mass. 634, 638–39 (1989) (citations omitted).
NOTE 2h
Intoxication. “The defendant testified that he had
ingested four or five mescaline pills and smoked seven or eight
marihuana cigarettes on the day of the interrogation. He testified
that he was not able to think clearly and that he had no recollection of being advised of his rights. The defendant stated that during the questioning ‘everything is like cloudy.’
“‘Intoxication alone is not sufficient to negate an otherwise
voluntary act.’ Commonwealth v. Doucette, 391 Mass. 443, 448
(1948). The defendant spoke coherently with the police, signed a
waiver form, and appeared sober to the officers. See Commonwealth v. Lanoue, 392 Mass. 583, 589 (1984) (police entitled to
rely on defendant’s outward behavior). The defendant was able to
explain the details of the murder in his confession, which is indica-
NOTE 3a
Bill of Particulars. “‘A defendant in a criminal proceeding is not entitled by a motion for a bill of particulars to secure
a resume of the evidence that the Commonwealth intends to introduce at the trial, or to have such a motion treated in all respects as
if it were a set of interrogatories.’ Commonwealth v. Hayes, 311
Mass. 21, 25 (1942). A bill of particulars should give a defendant
reasonable notice of the nature and character of the crimes
charged. Id. at 24–25. Here, the Commonwealth’s bill of particulars provided the defendant with such notice. The defendant had
reasonable knowledge of the crimes charged, with adequate notice to prepare his defense. See Commonwealth v. Tavares, 385
Mass. 140, 157, cert. denied, 457 U.S. 1137 (1982) (defendant
charged with murder in the first degree was not prejudiced by
variance between bill of particulars, which suggested proof of
premeditation and felony-murder but not extreme atrocity or cruelty, and proof at trial of extreme atrocity or cruelty, because victim’s
autopsy report put defendant on notice). The defendant here was
not surprised by the proof offered by the Commonwealth at trial.
Id.” Commonwealth v. Amirault, 404 Mass. 221, 233–34 (1989).
NOTE 3b
“[A] bill of particulars is a matter of sound judicial
discretion.” Commonwealth v. Allison, 434 Mass. 670, 677 (2001)
(citations omitted).
NOTE 4a
Requirements for Suppression Motion. “Mass.R.
Crim.P. 13(a)(2), 378 Mass. 871 (1979), imposes two essential
prerequisites on a defendant who seeks to suppress evidence
alleged to be the product of an illegal search or seizure: (1) a motion setting forth with particularity, in numbered paragraphs, the
grounds, see Commonwealth v. Robie, 51 Mass. App. Ct. 494,
499 (2001); and (2) an affidavit based on personal knowledge of
the facts relied on in support of the motion. See Commonwealth v.
Santosuosso, 23 Mass. App. Ct. 310, 313 (1986); Commonwealth
v. Santiago, 30 Mass. App. Ct. 207, 212–213 (1991). The purpose
of the affidavit requirement is ‘to give the judge considering the
motion a statement of anticipated evidence, in reliable form, to
meet the defendant’s initial burden of establishing the facts necessary to support his motion . . . and . . . to provide the Commonwealth with fair notice of the specific facts relied on in support of
the motion set forth in a form, i.e., under oath, which is not readily
subject to change by the affiant.’ Commonwealth v. Santosuosso,
supra.” Commonwealth v. Clegg, 61 Mass. App. Ct. 197, 203
(2004).
NOTE 4b
The failure to file an affidavit “alone would have warranted denial of the motion to suppress without a hearing, see
Commonwealth v. Smallwood, 379 Mass. 878, 888 (1980); Commonwealth v. Chase, 14 Mass. App. Ct. 1032, 1034 (1982), or at
the very least, the insistence on a proper affidavit before scheduling the motion for hearing. See Commonwealth v. McColl, 375
Mass. 316, 322 (1978).” Commonwealth v. Clegg, 61 Mass. App.
Ct. at 203–04.
NOTE 4c
“In view of the ambiguity as to whether the defendant was limiting his motion to the search of his person, the Commonwealth, before the evidentiary hearing, could have asked for a
more particularized affidavit or moved that the motion to suppress
be denied without a hearing for failing to provide the Commonwealth fair notice as to the search he was challenging. The Commonwealth, however, made no such motion and challenges the
particularity of the affidavit only on appeal. By failing to have made
such a motion, the Commonwealth waived any objection to the
particularity of the defendant’s affidavit pursuant to rule 13(a)(2).”
Commonwealth v. Mubdi, 456 Mass. 385, 390–91 (2010) (footnote
and citation omitted).
NOTE 4d
Timing of Suppression Hearing and Trial. Combining a suppression hearing with a trial is improper. Commonwealth v. Love, 452 Mass. 498, 508 (2008); Commonwealth v.
Healy, 452 Mass. 510, 516 (2008).
607
Massachusetts Rules of Criminal Procedure
NOTE 5a
Lost or Destroyed Evidence. “The loss and destruction of highly relevant evidence by the Commonwealth and its
agents defeated the defendant’s opportunity effectively to present
a defense.” Accordingly, the Supreme Judicial Court reversed the
defendant’s conviction for murder in the first degree. Commonwealth v. Olszewski, 401 Mass. 749, 756 (1988).
NOTE 5b
“When potentially exculpatory evidence is lost or
destroyed, the court must perform a balancing test to determine
what remedial action, if any, is necessary. Commonwealth v. Willie, 400 Mass. 472, 432 (1987). Those factors to be considered
include the culpability of the Commonwealth, the materiality of the
evidence and the potential for prejudice to the defendant. Id. See
Arizona v. Youngblood, 109 S.Ct. 333, 334–337 (1988) (failure to
preserve potentially useful evidence not denial of due process
absent bad faith by government).” Commonwealth v. Troy, 405
Mass. 253, 261 (1989) (footnote omitted).
NOTE 5c
“We seek to clarify and resolve the somewhat different approaches taken in our cases. When a defendant makes a
claim that the government has lost or destroyed potentially exculpatory evidence, it makes sense that he or she should bear the
initial burden of demonstrating the exculpatory nature of that evidence, using the Neal ‘reasonable possibility, based on concrete
evidence’ formulation. [Commonwealth v. Neal, 392 Mass. 1
(1984)] at 12. We therefore hold that the defendant will be required
to meet this threshold burden in order to advance a claim for relief.
If the defendant does meet the burden, then . . . the judge, or the
court on appeal, must proceed to balance the Commonwealth’s
culpability, the materiality of the evidence, and the prejudice to the
defendant in order to determine whether the defendant is entitled
to relief.” Commonwealth v. Williams, 455 Mass. 706, 718 (2010)
(citations omitted).
NOTE 6a
Egregious Misconduct. “‘Absent egregious misconduct or at least a serious threat of prejudice, the remedy of
dismissal infringes too severely on the public interest in bringing
guilty persons to justice.’ Commonwealth v. Cinelli, 389 Mass.
197, 210, cert. denied, 464 U.S. 860 (1983).
“This court has declined to adopt a per se rule mandating
dismissal of complaints in cases in which government agents intentionally violate the attorney-client relationship and the right to a
fair trial.”
Commonwealth v. Fontaine, 402 Mass. 491, 495, 498 (1988)
(citations omitted).
NOTE 6b
Defendant was arraigned March 16 and the case
was continued until April 10. On April 10, the defense moved to
continue, which was granted. The case was continued until May 8.
On that date the police officer failed to appear and the judge dismissed the case. “Where a dismissal is without prejudice, the
judge’s action should be upheld in the absence of an abuse of
discretion. Where, as here, the dismissals are with prejudice, there
must be a showing of egregious misconduct or at least a serious
threat of prejudice. Although we do not excuse the prosecutor’s
failure to ensure that the police officer would be present on May 8,
we conclude that such conduct does not rise to the level of ‘egregious conduct.’” Commonwealth v. Connelly, 418 Mass. 37, 38
(1994).
NOTE 7
Statute of Limitations. See G.L. c. 277, § 63.
NOTE 8
Preindictment Delay. “The judge found that the
exercise of reasonable diligence by either the Fall River or the
Providence police in all probability would have resulted in the defendant’s being informed of the allegations against him shortly
after the incident. However, the judge held that the defendant did
not present sufficient evidence to meet his burden of proving that
he is entitled to dismissal of the indictment. We agree with the
judge’s conclusions.
“The defendant bears the heavy burden of showing that there
was prejudice and that the delay has been intentionally undertaken to gain a tactical advantage over the accused or has been incurred in reckless disregard of known risks to the putative defendant’s ability to mount a defense.”
Commonwealth v. Fayerweather, 406 Mass. 78, 86 (1989)
(quotation marks and citations omitted).
NOTE 9
Motion to Dismiss. “In Commonwealth v.
Brandano, [359 Mass. 332 (1971),] at 337, we stated that, when
the defendant seeks dismissal of a complaint over the Commonwealth’s objection, each party should submit affidavits in support
of its position and there should be a hearing on any disputed matter. In Commonwealth v. Clark, 393 Mass. 361, 365 (1984), we
held that the judge’s use of the Brandano procedure when hearing
the defendant’s pretrial motion to dismiss, because of the insufficiency of the Commonwealth’s contemplated evidence, was inappropriate since the Commonwealth’s stipulations and offers of
proof indicated that there was additional evidence. See Rosenberg
v. Commonwealth, 372, Mass. 59, 63 (1977). Clearly these principles do not apply where the Commonwealth willingly participates
in pretrial procedures potentially dispositive of the case, raising no
objection nor making any attempt to inform the judge of its desire
to offer additional evidence.” Commonwealth v. Black, 403 Mass.
675, 678 (1989); Commonwealth v. Thurston, 419 Mass. 101
(1994) (“The reasons advanced by the judge [the inability of the
Commonwealth to prove its case] do not amount to a justification
for a dismissal in the ‘interests of public justice’ over objection of
the Commonwealth [because the Commonwealth clearly does have
evidence by which it might present a prima facie case].” Id. at 105.).
NOTE 10
Commonwealth Remedies. “The Commonwealth
had ample remedies for the allegedly improper dismissal of a criminal complaint for lack of prosecution. It could have sought reconsideration of the dismissal of the complaint. It could have appealed
the ruling. It could have proceeded by way of indictment. What it
could not do was simply ignore the judge’s ruling and refile the
same complaints in the same court.” Commonwealth v. Williams,
431 Mass. 71, 76–77 (2000) (citations, quotation marks and
brackets omitted).
NOTE 11
Power to Reconsider. “Rule 13(a)(5) . . . permits a
judge to reconsider if ‘substantial justice requires.’ This rule is not
limited to instances where there are allegations of new or additional grounds that could not have been reasonably known when
the original motion was filed. Commonwealth v. Haskell, 438
Mass. 790, 792 (2003). ‘A judge’s power to reconsider his own
decisions during the pendency of a case is firmly rooted in the
common law, and the adoption of Rule 13 was not intended to
disturb this authority.’ Id.” Commonwealth v. Lugo, 64 Mass. App.
Ct. 12, 14 (2005).
RULE 14
Pretrial Discovery
(Amended effective Sept. 7, 2004 and applicable to those cases initiated
(by indictment or complaint) on or after the effective date; amended by
court order Apr. 4, 2005, effective May 1, 2005; Dec. 17, 2008, effective
Apr. 1, 2009; June 26, 2012, effective Sept. 17, 2012.) (Applicable to
trials in the District Court and Superior Court.)
(a) Procedures for Discovery.
(1) Automatic Discovery.
(A) Mandatory Discovery for the Defendant. The
prosecution shall disclose to the defense, and permit the
defense to discover, inspect and copy, each of the following items and information at or prior to the pretrial conference, provided it is relevant to the case and is in the possession, custody or control of the prosecutor, persons under the prosecutor’s direction and control, or persons who
have participated in investigating or evaluating the case
and either regularly report to the prosecutor’s office or
have done so in the case:
(i) Any written or recorded statements, and the substance of any oral statements, made by the defendant or a
co-defendant.
3
3
608
Massachusetts Criminal Law Sourcebook & Citator 2013
(ii) The grand jury minutes, and the written or recorded statements of a person who has testified before a grand
jury.
(iii) Any facts of an exculpatory nature.
(iv) The names, addresses, and dates of birth of the
Commonwealth’s prospective witnesses other than law
enforcement witnesses. The Commonwealth shall also
provide this information to the Probation Department.
(v) The names and business addresses of prospective
law enforcement witnesses.
(vi) Intended expert opinion evidence, other than evidence that pertains to the defendant’s criminal responsibility and is subject to subdivision (b)(2). Such discovery
shall include the identity, current curriculum vitae, and list
of publications of each intended expert witness, and all
reports prepared by the expert that pertain to the case.
(vii) Material and relevant police reports, photographs, tangible objects, all intended exhibits, reports of
physical examinations of any person or of scientific tests
or experiments, and statements of persons the party intends to call as witnesses.
(viii) A summary of identification procedures, and all
statements made in the presence of or by an identifying
witness that are relevant to the issue of identity or to the
fairness or accuracy of the identification procedures.
(ix) Disclosure of all promises, rewards or inducements made to witnesses the party intends to present at trial.
(B) Reciprocal Discovery for the Prosecution. Following the Commonwealth’s delivery of all discovery required
pursuant to subdivision (a)(1)(A) or court order, and on or
before a date agreed to between the parties, or in the absence of such agreement a date ordered by the court, the
defendant shall disclose to the prosecution and permit the
Commonwealth to discover, inspect, and copy any material and relevant evidence discoverable under subdivision
(a)(1)(A) (vi), (vii) and (ix) which the defendant intends to
offer at trial, including the names, addresses, dates of
birth, and statements of those persons whom the defendant
intends to call as witnesses at trial.
(C) Stay of Automatic Discovery; Sanctions. Subdivisions (a)(1)(A) and (a)(1)(B) shall have the force and effect of a court order, and failure to provide discovery pursuant to them may result in application of any sanctions
permitted for non-compliance with a court order under
subdivision 14(c). However, if in the judgment of either
party good cause exists for declining to make any of the
disclosures set forth above, it may move for a protective
order pursuant to subdivision (a)(6) and production of the
item shall be stayed pending a ruling by the court.
(D) Record of Convictions of the Defendant, Codefendants, and Prosecution Witnesses. At arraignment the
court shall order the Probation Department to deliver to
the parties the record of prior complaints, indictments and
dispositions of all defendants and of all witnesses identified pursuant to subdivisions (a)(1)(A)(iv) within 5 days of
the Commonwealth’s notification to the Department of the
names and addresses of its witnesses.
(E) Notice and Preservation of Evidence. (i) Upon receipt of information that any item described in subparagraph (a)(1)(A)(i)–(viii) exists, except that it is not within
the possession, custody or control of the prosecution, persons under its direction and control, or persons who have
participated in investigating or evaluating the case and
either regularly report to the prosecutor’s office or have
done so in the case, the prosecution shall notify the defendant of the existence of the item and all information
known to the prosecutor concerning the item’s location
and the identity of any persons possessing it. (ii) At any
time, a party may move for an order to any individual,
agency or other entity in possession, custody or control of
items pertaining to the case, requiring that such items be
preserved for a specified period of time. The court shall
hear and rule upon the motion expeditiously. The court
may modify or vacate such an order upon a showing that
preservation of particular evidence will create significant
hardship, on condition that the probative value of said evidence is preserved by a specified alternative means.
(2) Motions for Discovery. The defendant may move,
and following its filing of the Certificate of Compliance
the Commonwealth may move, for discovery of other material and relevant evidence not required by subdivision
(a)(1) within the time allowed by Rule 13(d)(1).
(3) Certificate of Compliance. When a party has provided all discovery required by this rule or by court order,
it shall file with the court a Certificate of Compliance. The
certificate shall state that, to the best of its knowledge and
after reasonable inquiry, the party has disclosed and made
available all items subject to discovery other than reports
of experts, and shall identify each item provided. If further
discovery is subsequently provided, a supplemental certificate shall be filed with the court identifying the additional
items provided.
(4) Continuing Duty. If either the defense or the prosecution subsequently learns of additional material which it
would have been under a duty to disclose or produce pursuant to any provisions of this rule at the time of a previous discovery order, it shall promptly notify the other party
of its acquisition of such additional material and shall disclose the material in the same manner as required for initial discovery under this rule.
(5) Work Product. This rule does not authorize discovery by a party of those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions,
theories, or conclusions of the adverse party or its attorney
and legal staff, or of statements of a defendant, signed or
unsigned, made to the attorney for the defendant or the
attorney’s legal staff.
(6) Protective Orders. Upon a sufficient showing, the
judge may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other
order as is appropriate. The judge may alter the time requirements of this rule. The judge may, for cause shown,
grant discovery to a defendant on the condition that the
material to be discovered be available only to counsel for
the defendant. This provision does not alter the allocation
of the burden of proof with regard to the matter at issue,
including privilege.
(7) Amendment of Discovery Orders. Upon motion of
either party made subsequent to an order of the judge pursuant to this rule, the judge may alter or amend the previous
order or orders as the interests of justice may require. The
judge may, for cause shown, affirm a prior order granting
discovery to a defendant upon the additional condition that
Massachusetts Rules of Criminal Procedure
the material to be discovered is to be available only to
counsel for the defendant.
(8) A party may waive the right to discovery of an
item, or to discovery of the item within the time provided
in this Rule. The parties may agree to reduce or enlarge the
items subject to discovery pursuant to subsections
(a)(1)(A) and (a)(1)(B). Any such waiver or agreement
shall be in writing and signed by the waiving party or the
parties to the agreement, shall identify the specific items
included, and shall be served upon all the parties.
(b) Special Procedures.
(1) Notice of Alibi.
(A) Notice by Defendant. The judge may, upon written motion of the Commonwealth filed pursuant to subdivision (a)(2) of this rule, stating the time, date, and place
at which the alleged offense was committed, order that the
defendant serve upon the prosecutor a written notice,
signed by the defendant, of his or her intention to offer a
defense of alibi. The notice by the defendant shall state the
specific place or places at which the defendant claims to
have been at the time of the alleged offense and the names
and addresses of the witnesses upon whom the defense
intends to rely to establish the alibi.
(B) Disclosure of Information and Witness. Within
seven days of service of the defendant’s notice of alibi, the
Commonwealth shall serve upon the defendant a written
notice stating the names and addresses of witnesses upon
whom the prosecutor intends to rely to establish the defendant’s presence at the scene of the alleged offense and
any other witnesses to be relied on to rebut testimony of
any of the defendant’s alibi witnesses.
(C) Continuing Duty to Disclose. If prior to or during
trial a party learns of an additional witness whose identity,
if known, should have been included in the information
furnished under subdivision (b)(1)(A) or (B), that party
shall promptly notify the adverse party or its attorney of
the existence and identity of the additional witness.
(D) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge
may exclude the testimony of any undisclosed witness
offered by such party as to the defendant’s absence from or
presence at the scene of the alleged offense. This rule shall
not limit the right of the defendant to testify.
(E) Exceptions. For cause shown, the judge may grant
an exception to any of the requirements of subdivisions
(b)(1)(A) through (D) of this rule.
(F) Inadmissibility of Withdrawn Alibi. Evidence of
an intention to rely upon an alibi defense, later withdrawn,
or of statements made in connection with that intention, is
not admissible in any civil or criminal proceeding against
the person who gave notice of that intention.
(2) Mental Health Issues
(A) Notice. If a defendant intends at trial to raise as an
issue his or her mental condition at the time of the alleged
crime, or if the defendant intends to introduce expert testimony on the defendant's mental condition at any stage of
the proceeding, the defendant shall, within the time provided for the filing of pretrial motions by Rule 13(d)(2) or
at such later time as the judge may allow, notify the prosecutor in writing of such intention. The notice shall state:
(i) whether the defendant intends to offer testimony of
expert witnesses on the issue of the defendant’s mental
609
condition at the time of the alleged crime or another specified time;
(ii) the names and addresses of expert witnesses
whom the defendant expects to call; and
(iii) whether those expert witnesses intend to rely in
whole or in part on statements of the defendant as to his or
her mental condition.
The defendant shall file a copy of the notice with the
clerk. The judge may for cause shown allow late filing of
the notice, grant additional time to the parties to prepare
for trial, or make such other order as may be appropriate.
(B) Examination.
If the notice of the defendant or subsequent inquiry by
the judge or developments in the case indicate that statements of the defendant as to his or her mental condition
will be relied upon by a defendant's expert witness, the
court, on its own motion or on motion of the prosecutor,
may order the defendant to submit to an examination consistent with the provisions of the General Laws and subject
to the following terms and conditions:
(i) The examination shall include such physical, psychiatric, and psychological tests as the examiner deems
necessary to form an opinion as to the mental condition of
the defendant at the relevant time. No examination based
on statements of the defendant may be conducted unless
the judge has found that (a) the defendant then intends to
offer into evidence expert testimony based on his or her
own statements or (b) there is a reasonable likelihood that
the defendant will offer that evidence.
(ii) No statement, confession, or admission, or other
evidence of or obtained from the defendant during the
course of the examination, except evidence derived solely
from physical examinations or tests, may be revealed to
the prosecution or anyone acting on its behalf unless so
ordered by the judge.
(iii) The examiner shall file with the court a written
report as to the mental condition of the defendant at the
relevant time.
Unless the parties mutually agree to an earlier time of
disclosure, the examiner's report shall be sealed and shall
not be made available to the parties unless (a) the judge
determines that the report contains no matter, information,
or evidence which is based upon statements of the defendant as to his or her mental condition at the relevant time or
which is otherwise within the scope of the privilege
against self-incrimination; or (b) the defendant files a motion requesting that the report be made available to the
parties; or (c) after the defendant expresses the clear intent
to raise as an issue his or her mental condition, the judge is
satisfied that (1) the defendant intends to testify, or (2) the
defendant intends to offer expert testimony based in whole
or in part on statements made by the defendant as to his or
her mental condition at the relevant time.
At the time the report of the Commonwealth's examiner is disclosed to the parties, the defendant shall provide
the Commonwealth with a report of the defense psychiatric or psychological expert(s) as to the mental condition of
the defendant at the relevant time.
The reports of both parties' experts must include a
written summary of the expert's expected testimony that
fully describes: the defendant's history and present symptoms; any physical, psychiatric, and psychological tests
3
3
610
Massachusetts Criminal Law Sourcebook & Citator 2013
relevant to the expert's opinion regarding the issue of mental condition and their results; any oral or written statements made by the defendant relevant to the issue of the
mental condition for which the defendant was evaluated;
the expert's opinions as to the defendant's mental condition, including the bases and reasons for these opinions;
and the witness's qualifications.
If these reports contain both privileged and nonprivileged matter, the court may, if feasible, at such time as it
deems appropriate prior to full disclosure of the reports to
the parties, make available to the parties the nonprivileged
portions.
(iv) If a defendant refuses to submit to an examination
ordered pursuant to and subject to the terms and conditions
of this rule, the court may prescribe such remedies as it
deems warranted by the circumstances, which may include
exclusion of the testimony of any expert witness offered
by the defense on the issue of the defendant's mental condition or the admission of evidence of the refusal of the
defendant to submit to examination.
(C) Additional discovery. Upon a showing of necessity, the Commonwealth and the defendant may move for
other material and relevant evidence relating to the defendant's mental condition.
(3) Notice of Other Defenses. If a defendant intends to
rely upon a defense based upon a license, claim of authority
or ownership, or exemption, the defendant shall, within the
time provided for the filing of pretrial motions by Rule
13(d)(2) or at such later time as the judge may direct, notify the prosecutor in writing of such intention and file a
copy of such notice with the clerk. If there is a failure to
comply with the requirements of this subdivision, a license, claim of authority or ownership, or exemption may
not be relied upon as a defense. The judge may for cause
shown allow a late filing of the notice or grant additional
time to the parties to prepare for trial or make such other
order as may be appropriate.
(4) Self Defense and First Aggressor.
(A) Notice by Defendant. If a defendant intends to
raise a claim of self defense and to introduce evidence of
the alleged victim's specific acts of violence to support an
allegation that he or she was the first aggressor, the defendant shall no later than 21 days after the pretrial hearing or at such other time as the judge may direct for good
cause, notify the prosecutor in writing of such intention.
The notice shall include a brief description of each such
act, together with the location and date to the extent practicable, and the names, addresses and dates of birth of the
witnesses the defendant intends to call to provide evidence
of each such act. The defendant shall file a copy of such
notice with the clerk.
(B) Reciprocal Disclosure by the Commonwealth. No
later than 30 days after receipt of the defendant's notice, or
at such other time as the judge may direct for good cause,
the Commonwealth shall serve upon the defendant a written notice of any rebuttal evidence the Commonwealth
intends to introduce, including a brief description of such
evidence together with the names of the witnesses the
Commonwealth intends to call, the addresses and dates of
birth of other than law enforcement witnesses and the
business address of law enforcement witnesses.
(C) Continuing Duty to Disclose. If prior to or during
trial a party learns of additional evidence that, if known,
should have been included in the information furnished
under subdivision (b)(4)(A) or (B), that party shall
promptly notify the adverse party or its attorney of such
evidence.
(D) Failure to Comply. Upon the failure of either party to comply with the requirements of this rule, the judge
may exclude the evidence offered by such party on the
issue of the identity of the first aggressor.
(c) Sanctions for Noncompliance.
(1) Relief for Nondisclosure. For failure to comply
with any discovery order issued or imposed pursuant to
this rule, the court may make a further order for discovery,
grant a continuance, or enter such other order as it deems
just under the circumstances.
(2) Exclusion of Evidence. The court may in its discretion exclude evidence for noncompliance with a discovery
order issued or imposed pursuant to this rule. Testimony of
the defendant and evidence concerning the defense of lack
of criminal responsibility which is otherwise admissible
cannot be excluded except as provided by subdivision
(b)(2) of this rule.
(d) Definition.
The term “statement”, as used in this rule, means:
(1) a writing made, signed, or by a person having percipient knowledge of relevant facts and which contains
such facts, other than drafts or notes that have been incorporated into a subsequent draft or final report; or
(2) a written, stenographic, mechanical, electrical, or
other recording, or transcription thereof, which is a substantially verbatim recital of an oral declaration except that
a computer assisted real time translation, or its functional
equivalent, made to assist a deaf or hearing impaired person, that is not transcribed or permanently saved in electronic form, shall not be considered a statement.
NOTE 1a
Recording Psychiatric Examination/Presence of
Counsel. It is within the judge’s discretion to allow or deny the (1)
videotaping/recording of a psychiatric examination; and (2) presence of counsel at the examination. Commonwealth v. Baldwin,
426 Mass. 105 (1997).
NOTE 1b
“We have recently addressed the issue of whether a
defendant’s failure to provide notice of his intention to present a
defense of lack of criminal responsibility precludes him from introducing testimony on that issue. In Commonwealth v. Guadalupe,
401 Mass. 372 (1987), we examined Mass.R.Crim.P. 14 and concluded that failure to notify the Commonwealth of the intention to
present an insanity defense may preclude the defendant from introducing expert opinion ‘only in circumstances where the defendant
has refused to submit to a court-ordered psychiatric examination.’
Id. at 375. Our holding in Guadalupe is dispositive of this appeal.
“Pursuant to a court order, the defendant in the instant case
was examined by a psychiatrist at Bridgewater State Hospital to
determine his criminal responsibility. At no time did he refuse to
undergo an examination. Therefore, despite the defendant’s noncompliance with the controlling notice provision, the trial judge
should not have precluded the defendant from offering expert
testimony on his lack of criminal responsibility. We recognize that
there are inherent difficulties whenever a trial judge orders a continuance midway through the trial. However, a continuance would
have provided the Commonwealth with sufficient time to secure
rebuttal evidence, while allowing the defendant to introduce expert
testimony.”
Commonwealth v. Dotson, 402 Mass. 185, 188–89 (1988)
(footnotes omitted).
611
Massachusetts Rules of Criminal Procedure
NOTE 1c
Expert Opinion. “The judge, as trier of fact, could
pick and choose on which witnesses and what portions of their
testimony he would rely in making his determination of guilt. . . .
‘[E]ven in the absence of expert opinion from the Commonwealth, the trier of fact is not required to conclude that a defendant
lacks criminal responsibility.”
Commonwealth v. Goulet, 402 Mass. 299, 306–09 (1988)
(footnotes omitted).
NOTE 2a
Exculpatory Evidence. “Ordinarily, due process
requires that the prosecution make timely disclosure to a defendant of exculpatory material evidence in its possession. Exculpatory
evidence includes ‘evidence which provides some significant aid to
the defendant’s case, whether it furnishes corroboration of the
defendant’s story, calls into question a material, although not indispensable, element of the prosecution’s version of the events, or
challenges the credibility of a key prosecution witness.’ Commonwealth v. Ellison, 376 Mass. 1, 22 (1978).
“Undisclosed exculpatory evidence is material if evaluated in
the context of the entire record, it creates a reasonable doubt that
did not otherwise exist. When a defendant makes a specific request for reasonably identified evidence, the evidence is deemed
material even if it only provides a substantial basis for claiming
materiality exists.
“In this case, the prosecution disclosed Johnson’s oral statement and his identity, but the disclosure was delayed until late in
the trial. Where the defense has not made a specific request for
the evidence whose disclosure is delayed, the question becomes
whether, given a timely disclosure, the defense would have been
able to prepare and present its case in such a manner as to create
a reasonable doubt that would not otherwise have existed. On the
other hand, where a specific request has been made, the appropriate question is whether, given a timely disclosure, the defense
would have been able to prepare and present its case in such a
manner as to create a substantial basis for claiming materiality
exists.”
Commonwealth v. Gregory, 401 Mass. 437, 441–42 (1988)
(citations and quotation marks omitted).
NOTE 2b
Failure to Perform Bloodtyping Analysis. “The
defendant asserts that the Commonwealth’s failure to perform
blood identification tests on the semen samples detected during
the autopsy procedure constituted a suppression of evidence in
violation of his due process rights. The Commonwealth maintains
that it had no affirmative duty to pursue potentially exculpatory
evidence for the benefit of the defendant. We conclude that there
was no suppression of evidence in this matter.
“We have held that the Commonwealth’s failure to conduct
certain tests or produce certain evidence was a permissible
ground on which to build a defense and that the defendant may
argue such a defense. However, the failure to conduct blood typing tests does not constitute suppression of evidence in violation
of due process within the doctrine of Brady v. Maryland, 373 U.S.
83 (1963).”
Commonwealth v. Richenburg, 401 Mass. 663, 669 (1988)
(citations omitted).
NOTE 3
Reciprocal Discovery. “The defendant argues he
had no obligation to turn over impeachment evidence to be used
against a Commonwealth witness. . . .
“We conclude that the pretrial report, on its face, required the
disclosure of the impeachment evidence. . . .
“Once it was discovered that the defendant violated the discovery order, it was incumbent on the judge to fashion an appropriate remedy. We have not reviewed the exclusion of statements
sought to be used for impeachment as a remedy for a discovery
violation. However, the factors taken into account in reviewing the
exclusion of an undisclosed witness are applicable to this situation
as well. Those factors are: (1) prevention of surprise; (2) evidence
of bad faith in the violation of the conference report; (3) prejudice
to the other party caused by the testimony; (4) the effectiveness of
less severe sanctions; and (5) the materiality of the statements to
the outcome of the case. In imposing the severest sanction of
preclusion of the evidence, the judge must make clear that all
these factors have been considered in balancing enforcement of
the rules against the defendant’s right to present a defense.”
Commonwealth v. Reynolds, 429 Mass. 388, 397–98 (1999) (citations omitted). See also Commonwealth v. Lewis, 48 Mass. App.
Ct. 343, 348 (1999).
NOTE 4
Rebuttal Evidence. “[T]he defendant made a detailed motion for discovery regarding the Commonwealth’s experts,
which [was allowed]. There is nothing on the record before us to
suggest that the Commonwealth sought to limit discovery to its
case-in-chief. Moreover, the defendant disclosed the content of
[his expert’s] anticipated testimony to the Commonwealth. Where
the accused has made a request for evidence sufficiently specific
to place the prosecution on notice as to what the defense desires,
the evidence must be disclosed. The Commonwealth, in violation
of a discovery order.” Commonwealth v. Giontzis, 47 Mass. App.
Ct. 450, 459 (1999) (citations and quotation marks omitted).
NOTE 5
Criminal Records of Witnesses. “The proper route
for the defendant to obtain prior convictions of prospective witnesses for the Commonwealth is by requesting the judge to order
the probation department to produce them.” Commonwealth v.
Martinez, 437 Mass. 84, 95 (2002).
NOTE 6a
Notice of Defense of Acting Under Authority.
“[A]uthority may be raised as a defense, and, if so raised, the
Commonwealth then bears the burden of proving beyond a reasonable doubt the absence of authority. To raise the defense of
acting under authority, the defendant must so notify the prosecutor
and file a copy of the claim with the clerk of the court where the
case is pending. Failure to do so renders the claim of authority
unavailable as a defense.” Commonwealth v. O’Connell, 438
Mass. 658, 664–65, (2003) (citations omitted).
NOTE 6b
authority.
See G.L. c. 278, § 7 for statute regarding defense of
NOTE 7
Foreign Language Statements. “We hold that
where the Commonwealth intends in its case-in-chief to offer at
trial statements made by a defendant in a foreign language in a
tape-recorded interview, it is within the judge’s discretion to require
the Commonwealth to provide defense counsel in advance of trial
with an English-language transcript of the interview, and to exclude the statements where the Commonwealth declines to do so.”
Commonwealth v. Portillo, 462 Mass. 324, 326 (2012).
NOTE 8
Notice of Defense: Firearm Manufactured Before
1900. “In the future, where a defendant charged with the unlawful
carrying of a firearm in violation of § 10(a) possesses evidence
that the firearm was manufactured before 1900, the defendant
shall provide the Commonwealth with pretrial notice of the affirmative defense of exemption as required by rule 14(b)(3). . . . Once a
defendant gives proper notice to the Commonwealth, the defendant bears the burden of producing evidence of the affirmative defense that the firearm was manufactured before 1900. If such evidence is presented, the burden rests on the prosecution to prove
beyond a reasonable doubt that the firearm was manufactured
after 1899.” Commonwealth v. Jefferson, 461 Mass. 821, 833–34
(2012) (footnote omitted).
NOTE 9a
Lost or Destroyed Evidence. “The loss and destruction of highly relevant evidence by the Commonwealth and its
agents defeated the defendant’s opportunity effectively to present
a defense.” Accordingly, the Supreme Judicial Court reversed the
defendant’s conviction for murder in the first degree. Commonwealth v. Olszewski, 401 Mass. 749, 756, (1988).
NOTE 9b
“When potentially exculpatory evidence is lost or
destroyed, the court must perform a balancing test to determine
what remedial action, if any, is necessary. Commonwealth v. Willie, 400 Mass. 472, 432 (1987). Those factors to be considered
include the culpability of the Commonwealth, the materiality of the
evidence and the potential for prejudice to the defendant. Id. See
Arizona v. Youngblood, 109 S.Ct. 333, 334–337 (1988) (failure to
preserve potentially useful evidence not denial of due process
absent bad faith by government).” Commonwealth v. Troy, 405
Mass. 253, 261 (1989) (footnote omitted).
3
3
612
Massachusetts Criminal Law Sourcebook & Citator 2013
NOTE 10
Defense access to crime scene in private residence. “We conclude that the judge had authority to allow the
motion and order access to a crime scene in a private residence,
on the basis of a showing that the information obtainable at the
scene was evidentiary and relevant to the defense, provided that
the owner of the residence was served with notice of the motion
and had an opportunity to be heard.” Commonwealth v. Matis, 446
Mass. 632, 633 (2006).
(b) Procedural Requirements
(1) Time for Filing Appeal. An appeal under subdivisions (a)(1) and (a)(3) shall be taken by filing a notice of
appeal in the trial court within thirty days of the date of the
order being appealed. An application for leave to appeal
under subdivision (a)(2) shall be made by filing within ten
days of the issuance of notice of the order being appealed,
or such additional time as either the trial judge or the single justice of the Supreme Judicial Court shall order, (a) a
notice of appeal in the trial court, and (b) an application to
the single justice of the Supreme Judicial Court for leave
to appeal.
(2) Record. The record for an interlocutory appeal
shall be defined and assembled pursuant to Massachusetts
Rule of Appellate Procedure 8. The judge shall make all
findings of fact relevant to the appeal or the application for
leave to appeal within the period specified in subdivision
(b)(1) for filing the notice of appeal.
(c) Determination of Motions
Any motion the determination of which may be appealed pursuant to this rule shall be decided by the judge
before the defendant is placed in jeopardy under established rules of law.
(d) Costs Upon Appeal
If an appeal or application therefor is taken by the
Commonwealth, the appellate court, upon the written motion of the defendant supported by affidavit, shall determine and approve the payment to the defendant of his or
her costs of appeal together with reasonable attorney’s fees
to be paid on the order of the trial court upon the entry of
the rescript or the denial of the application.
(e) Stay of the Proceedings
If the trial court issues an order which is subject to the
interlocutory procedures herein, the trial of the case shall
be stayed and the defendant shall not be placed in jeopardy
until interlocutory review has been waived or the period
specified in subdivision (b)(1) for instituting interlocutory
procedures has expired. If an appeal is taken or an application
for leave to appeal is granted, the trial shall be stayed
pending the entry of a rescript from or an order of the appellate court. If an appeal or application therefor is taken
by the Commonwealth, the defendant may be released on
personal recognizance during the pendency of the appeal.
NOTE 11
Protective Order. “Rule 14(a)(6) permits the entry
of protective orders . . . where circumstances require. . . . The
decision to enter such an order lies within a trial judge’s discretion.
The defendants first contend that the Commonwealth was required
to make a factual showing of a specific threat to witness safety,
and that such a showing was not made in this case, either by affidavit or sworn testimony, before the protective order issued. Although the Commonwealth bears the burden of demonstrating that
the safety of a witness would be put at risk if information, otherwise required to be disclosed, was made available to the defendant in the absence of a protective order, we have previously held
that it need not demonstrate a specific or actual threat to the safety of a witness when the danger to witness safety is inherent in the
situation.” Commonwealth v. Holliday, 450 Mass. 794, 803 (2008)
(citations and footnotes omitted).
NOTE 12
Punitive Sanctions. “[S]anctions pursuant to rule
14(c) are designed to protect a defendant’s right to a fair trial. To
that end, such sanctions, tailored to cure any prejudice to the defendant resulting from a discovery violation, are remedial, not punitive, in nature. Here, however, the judge imposed a $5,000 sanction on the Commonwealth, the purpose of which was not to ensure that the defendant received a fair trial, but as the judge stated, to penalize the Commonwealth for its misconduct. While punitive monetary sanctions are permitted in some instances under the
Massachusetts Rules of Criminal Procedure, they are not contemplated under rule 14(c)(1), given its remedial purpose.” Commonwealth v. Frith, 458 Mass. 434, 442 (2010) (citations omitted).
RULE 15
Interlocutory Appeal
(Applicable to District Court and Superior Court.)
(a) Right of Interlocutory Appeal
(1) Right of Appeal Where Pretrial Motion to Dismiss
or for Appropriate Relief Granted. The Commonwealth
shall have the right to appeal to the appropriate appellate
court a decision by a judge granting a motion to dismiss a
complaint or indictment or a motion for appropriate relief
made pursuant to the provisions of subdivision (c) of Rule
13.
(2) Right of Appeal Where Motion to Suppress Evidence Determined. A defendant or the Commonwealth
shall have the right and opportunity to apply to a single
justice of the Supreme Judicial Court for leave to appeal
an order determining a motion to suppress evidence prior
to trial. If the single justice determines that the administration of justice would be facilitated, the justice may grant
that leave and may hear the appeal or may report it to the
full Supreme Judicial Court or to the Appeals Court.
(3) Right of Appeal where Transfer of Delinquency
Proceeding is Denied. The Commonwealth shall have the
right to appeal to the Appeals Court a decision by a judge
denying transfer of a delinquency proceeding pursuant to
G.L. c. 119, § 61.
(4) Probable Cause Hearings. No interlocutory appeal
or report may be taken of matters arising out of a probable
cause hearing.
NOTE 1
“[T]he notice of appeal for an interlocutory appeal
from an order, under Mass.R.A.P. 4(b), must be filed within thirty
days after the order is filed.” Commonwealth v. Guaba, 417 Mass.
746, 751 (1994).
NOTE 2
“Litigants must be offered the opportunity to seek
interlocutory review as provided in Mass. R. Crim. P. 15.” Commonwealth v. Love, 452 Mass. 498, 507 (2008).
NOTE 3a
Rule 15(d). “[R]ule 15(d) reflects the Legislature’s
intent, once stated in G.L. c. 278, § 28E, that a defendant be reimbursed for attorney’s fees and costs associated with defending a
claim on which he or she has already succeeded.” Commonwealth
v. Gonsalves, 432 Mass. 613, 620 (2000).
NOTE 3b
“We therefore conclude that, after the date of this
opinion, a defendant shall file a rule 15(d) request within thirty days
of either the denial of the Commonwealth’s application for leave to
file an interlocutory appeal, or the issuance of the rescript from the
appellate court that decides the appeal, unless the defendant on
motion shows good cause why an enlargement of time should be
allowed.” Commonwealth v. Ennis, 441 Mass. 718, 720 (2004).
Massachusetts Rules of Criminal Procedure
NOTE 3c
“In seeking an award of attorney’s fees, the defendant shall file with the clerk of the court a motion and affidavits detailing and supporting the attorney’s fees and costs sought. Because rule 15(d) is mandatory, the Justices will determine only the
amount of the award. The Commonwealth shall be afforded thirty
days to respond to the defendant’s request, and the court will then
enter an appropriate order. Any party aggrieved by the order may
request reconsideration from the court.” Commonwealth v. Ennis,
441 Mass. 718, 721 n.3 (2004) (citations omitted).
NOTE 3d
“The defendant shall file a motion and supporting
affidavit with the clerk of the court within thirty days after the denial
of leave to file the appeal. The Commonwealth shall be afforded
thirty days to respond to the defendant’s request, and the single
justice shall then enter an appropriate order. Any party aggrieved
by the order may request reconsideration from the single justice.
Appellate review of the order of the single justice is generally not
available.” Commonwealth v. Ennis, 441 Mass. 718, 721 n.4
(2004) (citation and quotation marks omitted).
RULE 16
Dismissal by the Prosecution
(Applicable to District Court and Superior Court.)
(a) Entry of a Nolle Prosequi
A prosecuting attorney may enter a nolle prosequi of
pending charges at any time prior to the pronouncement of
sentence. A nolle prosequi shall be accompanied by a written statement, signed by the prosecuting attorney, setting
forth the reasons for that disposition.
(b) Entry of Nolle Prosequi During Trial
After jeopardy attaches, a nolle prosequi entered
without the consent of the defendant shall have the effect
of an acquittal of the charges contained in the nolle prosequi.
RULE 17
Summonses for Witnesses
(Applicable to District Court and Superior Court.)
(a) Summons
(1) For Attendance of Witness; Form; Issuance. A
summons shall be issued by the clerk or any person so
authorized by the General Laws. It shall state the name of
the court and the title, if any, of the proceeding and shall
command each person to whom it is directed to attend and
give testimony at the time and place specified therein.
(2) For Production of Documentary Evidence and of
Objects. A summons may also command the person to
whom it is directed to produce the books, papers, documents, or other objects designated therein. The court on
motion may quash or modify the summons if compliance
would be unreasonable or oppressive or if the summons is
being used to subvert the provisions of Rule 14. The court
may direct that books, papers, documents, or objects designated in the summons be produced before the court within a reasonable time prior to the trial or prior to the time
when they are to be offered in evidence and may upon their
production permit the books, papers, documents, objects, or
portions thereof to be inspected and copied by the parties
and their attorneys if authorized by law.
(b) Defendants Unable to Pay
At any time upon the written ex parte application of a
defendant which shows that the presence of a named witness is necessary to an adequate defense and that the defendant is unable to pay the fees of that witness, the court
shall order the issuance of an indigent’s summons. The
witness so summoned shall be paid in accordance with the
613
provisions of subdivision (c) of this rule. If the court so
orders, the costs incurred shall be assessed to the defendant in accordance with the General Laws or the provisions
of these rules.
(c) Payment of Witnesses
Expenses incurred by a witness summoned on behalf
of a defendant determined to be indigent under this rule as
well as expenses incurred by a witness summoned on behalf of the Commonwealth, as such expenses are determined in accordance with the General Laws, shall be paid
after the witness certifies in a writing filed with the court
the amount of his travel and attendance.
(d) Service
(1) By Whom; Manner. A summons may be served by
any person authorized to serve a summons in a civil action
or to serve criminal process. A summons shall be served
upon a witness by delivering a copy to him personally, by
leaving it at his dwelling house or usual place of abode
with some person of suitable age and discretion then residing therein, or by mailing to the witness’ last known address.
(2) Place of Service.
(A) Within the Commonwealth. A summons requiring
the attendance of a witness at a hearing or a trial may be
served at any place within the Commonwealth.
(B) Outside the Commonwealth or Abroad. A summons directed to a witness outside the Commonwealth or
abroad shall issue and be served in a manner consistent
with the General Laws.
(3) Return. The person serving a summons pursuant to
this rule shall make a return of service to the court.
(e) Failure to Appear
If a person served with a summons pursuant to this
rule fails to appear at the time and place specified therein
and the court determines that such person did receive actual notice to appear, a warrant may issue to bring that person before the court.
NOTE 1a
Standard for production of documentary evidence and of objects. “A judge’s task in reviewing a defendant’s
request for Rule 17(a)(2) summonses is to balance the defendant’s
right to mount a defense with the Commonwealth’s right to prevent
unnecessary delay of the trial and unwarranted harassment of
witnesses and third parties. . . . In Lampron, we adopted the
standards articulated by the Federal courts regarding the issuance
of a subpoena for production of documentary evidence because
our rule was modeled after Fed. R. Crim. P. 17(c) and is intended
to address the same circumstances . . . . Id. Accordingly, the party
moving to subpoena documents to be produced before trial must
establish good cause, satisfied by showing (1) that the documents
are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence;
(3) that the party cannot properly prepare for trial without such
production and inspection in advance of trial and that the failure to
obtain such inspection may tend to unreasonably delay the trial;
and (4) that the application [was] made in good faith and is not
intended as a general fishing expedition. Id. at 269.” Commonwealth v. Lam, 444 Mass. 224, 229–30 (2005) (quoting Commonwealth v. Lampron, 441 Mass. 265 (2004)) (citation and punctuation omitted).
NOTE 1b
“We consider whether the Commonwealth, in a criminal case, may seek the production of records from a third party in
advance of trial or an evidentiary hearing by issuing a subpoena
duces tecum directly to the party under G.L. c. 277, § 68, or
whether it must first obtain judicial approval, pursuant to Mass. R.
Crim. P. 17 (a) (2), as construed by Commonwealth v. Lampron,
441 Mass. 265, 268–71 (2004). We conclude that it must first ob-
3
614
Massachusetts Criminal Law Sourcebook & Citator 2013
tain judicial approval.” Commonwealth v. Odgren, 455 Mass. 171,
172 (2009) (citation omitted).
with leave of court, be excused from attendance if represented by counsel or an agent authorized by law and may
be excused from attendance without leave of court if so
authorized by the General Laws.
(3) Presence Not Required. A defendant need not be
present at a revision or revocation of sentence pursuant to
Rule 29 or at any proceeding where evidence is not to be
taken.
(b) Presence of Corporation
A corporation may appear by a duly authorized agent
for the purposes of this rule.
NOTE 2
Order allowing defense access to crime scene in
private residence. See Mass.R.Crim.P. 14, note 8. “The Commonwealth and the complainant’s family must have notice of the
defendant’s motion for pretrial access and the opportunity to be
heard, and the order must be carefully tailored to protect the legitimate privacy interests involved.” Commonwealth v. Matis, 446
Mass. 632, 635 (2006).
3
NOTE 3
Civil contempt for failure to produce. Judgment of
civil contempt warranted where third party refused to produce
summonsed documents and neither filed motion to quash nor
asserted privilege. Commonwealth v. Caceres, 63 Mass. App. Ct.
747, 751 (2005).
NOTE 4
Ex parte motions for issuance of summons. “We
conclude that, in rare instances, an ex parte motion may be an
appropriate procedure by which to obtain a court order compelling
the pretrial production of ‘books, papers, documents, or other objects,’ Mass. R. Crim. P. 17(a)(2), in the custody of a third party.
“An ex parte motion for a rule 17(a)(2) summons should be
filed, therefore, only after the pretrial conference has occurred and
the Commonwealth has furnished its discovery. The moving party
first should file a motion requesting that summonses for documents returnable prior to the trial be issued ex parte and under
seal and explaining, in specific terms and in detail, why it is necessary to proceed ex parte. An ex parte motion will be entertained
only in circumstances where the defendant has demonstrated (1)
a reasonable likelihood that the prosecution would be furnished
with information incriminating to the defendant which it otherwise
would not be entitled to receive; or (2) a reasonable likelihood that
notice to a third party could result in the destruction or alteration of
the requested documents. . . . An ex parte motion for the pretrial
production of documents cannot be made on the basis that notice
to the Commonwealth will reveal trial strategy or work product or
might disclose client confidences.
“The judge should, whenever feasible, seal the defendant’s
motion and affidavit, in whole or in part, and allow the Commonwealth to be heard on the defendant’s request for ex parte consideration. In such a circumstance, the judge should seal or impound
only as much of the motion and affidavit as is absolutely necessary to protect the defendant’s interests.
“In sum, although the process set forth in rule 17(a)(2) will
normally be of an adversary nature, there is nothing in the rule, or
in our cases interpreting the rule, that forecloses the availability of
an ex parte process in extraordinary circumstances.” Commonwealth v. Mitchell, 444 Mass. 786, 787–801 (2005) (citation omitted).
NOTE 5
Jail calls. “We conclude that, where the sheriff’s
policy of monitoring and recording detainees’ and inmates’ telephone calls is preceded by notice to all parties, and further, where
the recording and monitoring is justified by legitimate penological
interests, no privacy interest exists in the recorded conversations
such that they cannot be obtained by a grand jury subpoena.” In re
Grand Jury Subpoena, 454 Mass. 685, 688 (2009).
RULE 18
Presence of Defendant
(Applicable to District Court and Superior Court.)
(a) Presence of Defendant
In any prosecution for crime the defendant shall be
entitled to be present at all critical stages of the proceedings.
(1) Defendant Absenting Himself. If a defendant is
present at the beginning of a trial and thereafter absents
himself without cause or without leave of court, the trial
may proceed to a conclusion in all respects except the imposition of sentence as though the defendant were still
present.
(2) Waiver of Presence in Misdemeanor Cases. A person prosecuted for a misdemeanor may at his own request,
NOTE 1
“The defendant [incorrectly] asserts that a jurywaived trial begins when jeopardy attaches. . . . [Rule 18(a)(1)],
however, refers to ‘the beginning of a trial,’ not to the attachment
of jeopardy. . . . The defendant’s trial began when he was placed
at the bar for trial.” Commonwealth v. Elizondo, 428 Mass. 322,
325 (1998) (citations omitted).
NOTE 2
Defense Counsel to Continue In Absence of Defendant. “However much counsel may have chafed at going forward
in the absence of the defendant, and whatever her motivation, it
was a serious lapse in judgment to refuse to participate for more
than a day as the Commonwealth proceeded with its case.” Commonwealth v. Vickers, 60 Mass. App. Ct. 24, 33–34 (2003).
RULE 19
Trial by Jury or by the Court
(Applicable to Superior Court and jury sessions in District Court.)
(a) General
A case in which the defendant has the right to be tried
by a jury shall be so tried unless the defendant waives a
jury trial in writing with the approval of the court and files
the waiver with the clerk, in which instance he shall be
tried by the court instead of by a jury. If there is more than
one defendant, all must waive the right to trial by jury, and
if they do not so waive, there must be a jury trial unless the
court in its discretion severs the cases. The court may refuse
to approve such a waiver for any good and sufficient reason provided that such refusal is given in open court and
on the record.
(b) Less Than a Full Jury
If after jeopardy attaches there is at any time during
the progress of a trial less than a full jury remaining, a
defendant may waive his right to be tried by a full jury and
request trial by the remaining jurors by signing a written
waiver which shall be filed with the court. If there is more
than one defendant, all must sign and file a waiver unless
the court in its discretion severs the cases.
NOTE 1
Codefendants. One wants jury trial, other does not.
“The right to a trial by jury is constitutionally guaranteed. By contrast, the right of a defendant to waive a jury trial and proceed
instead with a bench trial is not constitutionally guaranteed. . . .
Therefore, a judge acting within his or her sound discretion may
properly deny a defendant’s written waiver of a jury trial and order
the defendant to stand trial before a jury—either alone, or with
codefendants who have not waived their right to a jury trial.”
Commonwealth v. Collado, 42 Mass. App. Ct. 464, 466 (1997).
NOTE 2
Individual Voir Dire Required. (1) Interracial rape.
Commonwealth v. Sanders, 383 Mass. 637, 640–41 (1981); (2)
Interracial assault and sexual abuse of a child. Commonwealth v.
Hobbs, 385 Mass. 863, 873 (1982); (3) Sexual offenses against
minors. Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994);
(4) Interracial murder. Commonwealth v. Young, 401 Mass. 390,
398 (1987); (5) Insanity. Commonwealth v. Seguin, 421 Mass.
243, 249 (1995); Commonwealth v. Biancardi, 421 Mass. 251,
254–55 (1995); (6) Overwhelming pretrial publicity. Commonwealth
Massachusetts Rules of Criminal Procedure
v. James, 424 Mass. 770, 776 (1997); (7) Juror affected by extraneous issues. G.L. c. 234, § 28; Mass.R.Crim.P. 20(b)(2).
NOTE 3
Individual Voir Dire Not Required. (1) Hispanic
defendant/white murder victim. Commonwealth v. De La Cruz, 405
Mass. 269 (1989); (2) Interracial robbery. Commonwealth v. Grice,
410 Mass. 586 (1991); (3) Racial/ethnic bias. Commonwealth v.
Ramirez, 407 Mass. 553, 557 (1990).
NOTE 4a
Waiver. “There is no constitutional requirement of a
particular means of demonstrating the legality of a jury waiver. In
this Commonwealth, a signed written waiver is required, as well as
an oral colloquy. In the District Court there is also a defense counsel certificate confirming that trial counsel has explained to the
defendant the characteristics of a jury trial forgone by executing a
waiver.
“The judge’s task in an oral colloquy is to satisfy himself that
any waiver by the defendant is made voluntarily and intelligently.
“. . .
“In evaluating the colloquy, we keep in mind that in addition to
considering the defendant’s answers to the questions posed during the colloquy, a judge may also rely upon the information contained in the jury waiver form signed by the defendant and in defense counsel’s certificate when making a determination whether
the defendant’s jury waiver is made voluntarily and intelligently. To
hold otherwise would be to render the Legislature’s mandate of a
certificate from defense counsel meaningless. This is so even
when the colloquy is sparse” Commonwealth v. Ridlon, 54 Mass.
App. Ct. 146, 147–49 (2002) (citations and quotation and punctuation marks omitted).
NOTE 4b
Written jury trial waiver. “The defendant’s illiteracy
does not, by any means, render the exercise of signing a written
waiver meaningless.” Commonwealth v. Johnson, 79 Mass. App.
Ct. 903, 904 (2011) (rescript).
NOTE 4c
Guilty Plea. “There is no requirement that, when
accepting a defendant’s tender of a guilty plea, a defendant’s
waiver of the right to a trial with or without a jury be in writing. . . .
The absence of a written jury trial waiver does not violate G.L.
c. 263, § 6, or rule 19(a), and does not provide a basis to invalidate the defendant’s pleas . . . The rule, by its express terms,
applies only in circumstances where a defendant chooses to be
tried by a judge instead of a jury.” Commonwealth v. Hubbard, 457
Mass. 24, 26, 28 (2010).
NOTE 5
Rule 19(b). A defendant may constitutionally waive
his right to a verdict rendered by fewer than six jurors. Commonwealth v. Nicoll, 452 Mass. 816, 818 (2008). See also Commonwealth v. Dery, 452 Mass. 823, 824 (2008).
NOTE 6
Related Statutes. G.L. c. 218, § 26A (Trial by jury of
six; discovery; jury-waived trial; record of proceedings; probation);
G.L. c. 263, § 8 (Conviction; manner; waiver of jury trial); G.L.
c. 278, § 29D ((Alien Warnings) Conviction upon plea of guilty or
nolo contendere; motion to vacate).
RULE 20
Trial Jurors
(Applicable to Superior Court and jury sessions in District Court.)
(a) Motion for Appropriate Relief
Either party may challenge the array by a motion for
appropriate relief pursuant to Rule 13(c). A challenge to
the array shall be made only on the ground that the prospective jurors were not selected or drawn according to
law. Challenges to the array shall be made and decided
before any individual juror is examined unless otherwise
ordered by the court. A challenge to the array shall be in
writing supported by affidavit and shall specify the facts
constituting the ground of the challenge. Challenges to the
array shall be tried by the court and may in the discretion
of the court be decided on the basis of the affidavit filed
with the challenge. Upon the hearing of a challenge to the
615
array, a witness may be examined on oath by the court and
may be so examined by either party. If the challenge to the
array is sustained, the court shall discharge the panel.
(b) Challenge for Cause
(1) Examination of Juror. The court shall, or upon motion, the parties or their attorneys may under the direction
of the court, examine on oath a person who is called as a
juror in a case to learn whether he is related to either party,
has any interest in the case, has expressed or formed an
opinion, or is sensible of any bias or prejudice. The objecting party may, with the approval of the court, introduce
other competent evidence in support of the objection.
(2) Examination upon Extraneous Issues. The court
shall examine or cause a juror to be examined upon issues
extraneous to the case if it appears that the juror’s impartiality may have been affected by the extraneous issues.
The examination may include a brief statement of the facts
of the case, to the extent the facts are appropriate and relevant to the issues of such examination, and shall be conducted individually and outside the presence of other persons about to be called or already called as jurors.
(3) Challenge of Juror. Either party may challenge an
individual prospective juror before the juror is sworn to try
the case. The court may for cause shown permit a challenge to be made after the juror is sworn but before any
evidence is presented. When a juror is challenged for cause,
the ground of the challenge shall be stated. A challenge of a
prospective juror and the statement of the grounds thereof
may be made at the bench. The court shall determine the
validity of each such challenge.
(c) Peremptory Challenges
(1) Number of Challenges. Upon the trial of an indictment for a crime punishable by imprisonment for life,
each defendant shall be entitled to twelve peremptory challenges of the jurors called to try the case; in any other
criminal case tried before a jury of twelve, each defendant
shall be entitled to four peremptory challenges; and in a
case tried before a jury of six, each defendant shall be entitled to two peremptory challenges. Each defendant in a
trial of an indictment for a crime punishable by imprisonment for life in which additional jurors are impaneled under subdivision (d) of this rule shall be entitled to one additional peremptory challenge for each additional juror.
Each defendant in a case in which several indictments or
complaints are consolidated for trial shall be entitled to no
more peremptory challenges than the greatest number to
which he would have been entitled upon trial of any one of
the indictments or complaints alone. In every criminal case
the Commonwealth shall be entitled to as many peremptory challenges as equal the whole number to which all the
defendants in the case are entitled.
(2) Time of Challenge. Peremptory challenges shall be
made before the jurors are sworn and may be made after
the determination that a person called to serve as a juror
stands indifferent in the case.
(d) Alternate Jurors
(1) Impanelling Jury with Alternate Jurors. If a jury
trial is likely to be protracted, the judge may impanel a
jury of not more than sixteen members and the court shall
have jurisdiction to try the case with that jury.
(2) Selection of Twelve Jurors. If at the time of the final submission of the case to the jury more than twelve
3
3
616
Massachusetts Criminal Law Sourcebook & Citator 2013
members of the jury who have heard the whole case are
alive and not incapacitated or disqualified, the judge shall
direct the clerk to place the names of all the remaining
jurors except the foreman in a box and draw the names of
a sufficient number to reduce the jury to twelve members.
Those jurors whose names are drawn shall not be discharged, but shall be known as alternate jurors and shall be
kept separate and apart from the other jurors in some convenient place, subject to the same rules and regulations as
the other jurors, until the jury has agreed upon a verdict or
has been otherwise discharged.
(3) Disabled Juror: Selection of Alternate. If, at any
time after the final submission of the case by the court to
the jury but before the jury has agreed on a verdict, a juror
dies, becomes ill, or is unable to perform his duty for any
other cause, the judge may order him to be discharged and
shall direct the clerk to place the names of all the remaining alternate jurors in a box and draw the name of an alternate who shall take the place of the discharged juror on the
jury, which shall renew its deliberations with the alternate
juror.
(e) Regulation and Separation of Jurors
(1) Sequestration. After the jurors have been sworn
they shall hear the case as a body and, within the discretion of the trial judge, may be sequestered.
(2) After Submission of the Cause. Unless the jurors
have been sequestered for the duration of the trial, the
judge after the final submission of the case, may order that
the jurors be permitted to separate for a definite time to be
fixed by the judge and then reconvene in the courtroom
before retiring for consideration of their verdict.
(3) After Commencement of Deliberations. After final
submission of the case to the jury and after deliberations
have commenced, the judge may allow the jurors, under
proper instructions, to separate for a definite time to be
fixed by the judge and to reconvene in the courtroom before retiring for further deliberation of their verdict.
crime and, if not technically so, whether nevertheless it should be
treated that way.”
The Supreme Judicial Court answered in the negative.
Commonwealth v. De La Cruz, 405 Mass. 269, 272 (1989).
NOTE 1
Challenge for Cause. The judge refused to challenge for cause a juror, who had been a policeman for 26 years.
The Supreme Judicial Court upheld that decision. “We decline to adopt a rule that the mere fact that a prospective juror is a
police officer, in the absence of a showing of prejudice or partiality,
or connection with the particular facts involved at trial, would form
the basis to sustain a challenge for cause.”
Commonwealth v. Ascolillo, 405 Mass. 456, 460–61 (1989).
NOTE 2
“We stated in Commonwealth v. Sanders, 383 Mass.
637, 640–641 (1981), that, in cases of interracial rape, prospective
jurors must be interrogated individually in accordance with the
statute, rather than as a group because, as a matter of law, ‘interracial rape cases present a substantial risk that extraneous issues
will influence the jury.’ In Commonwealth v. Hobbs, 385 Mass.
863, 875 (1982), we extended the Sanders rule to the interracial
assault and sexual abuse of a child. We extended the rule as to
interracial murder in Commonwealth v. Young, 401 Mass. 390,
398 (1987). In each case, we held that the trial judge must question each juror individually, out of the hearing of the venire, about
possible racial bias and prejudice. These decisions rested not on
constitutional grounds but, rather, on our superintendency power
to implement the statutory policy set forth in G.L. c. 234, § 28.
Commonwealth v. Young, supra at 398 n.8. We have clearly stated that cases involving a black defendant and white victim, Commonwealth v. Sanders, supra; Commonwealth v. Hobbs, supra; or
a black defendant and Hispanic victim, Commonwealth v. Young,
supra, are ‘interracial.’ The issue before us now is whether sexual
assault of a white child by an Hispanic defendant is an ‘interracial’
NOTE 2a
Sexual Abuse. In cases involving sexual abuse
against a minor, individual voir dire concerning whether or not a
potential juror has been a victim of childhood abuse is mandated.
Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994).
NOTE 2b
Insanity. At a murder trial, the judge’s individual
questioning of each prospective juror was sufficient to ensure that
no juror was biased against the defendant’s reliance on the defense of insanity. Commonwealth v. Seguin, 421 Mass. 243 (1995).
See also Commonwealth v. Biancardi, 421 Mass. 251 (1995).
NOTE 3a
Procedure. If a challenge is made, the judge must
first determine whether or not a prima facie showing of impropriety
has been made. If the judge asks the ADA the reasons for the
challenge, the judge has in effect made that preliminary determination of impropriety. After the prosecutor offers an explanation for
the challenge, the judge must then determine whether the reason
is bona fide or a mere sham. Commonwealth v. Seguin, 421 Mass.
243 (1995). See also Commonwealth v. Calderon, 431 Mass. 21
(2000); Commonwealth v. Calderon, 46 Mass. App. Ct. 483, 486
(1999).
NOTE 3b
Procedure. “When the issue of improper peremptory
challenges is raised, the trial judge should make a finding as to
whether the requisite prima facie showing or impropriety has been
made . . . . Once a defendant makes a sufficient showing of impropriety, the burden shifts to the prosecutor to provide a groupneutral reason for challenging the venire person in question. Although the prosecutor’s explanation does not have to rise to the
level of specificity required for a removal for cause, general assertions are not enough. The prosecutor must give a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges. The reasons must be personal to the juror and
not based on the juror’s group affiliation. After hearing the prosecutor’s explanations, the judge must then decide whether the challenges were exercised improperly because they were based on
the juror’s membership in a discrete group. Once the judge decides that an adequate reason exists for exercising the challenge,
an appellate court will accord substantial deference to the decision
if it is supported by the record.” Commonwealth v. Burnett, 418
Mass. 769, 771, 642 (1994). See also Commonwealth v. Carleton,
418 Mass. 773 (1994) (prosecutor improperly struck potential jurors with Irish or Italian sounding surnames); Commonwealth v.
Caldwell, 418 Mass. 777 (1994) (prosecutor struck four potential
black jurors; proper reasons include: (1) if a juror lives in a neighborhood in which the prosecutor had investigated a multiple homicide; (2) if a juror had a very limited education and therefore would
be unable to grasp some of the concepts which were central to the
case; (3) if the juror had a trip planned; (4) if a police officer involved with the case indicates to the prosecutor that he is familiar
with the juror’s family with whom he may have had some dealings;
(5) if the juror lives or used to live within a few streets of where the
defendant lives with his parents; (6) a juror’s demeanor and reactions during the voir dire (reason must not be vague and general).
Carleton, 418 Mass. at 779–81.)
NOTE 3c
Different race. “The defendant, a minority person
[Hispanic], was entitled to a jury representing a fair cross section
of the community, which would include African-Americans as well as
Hispanics.” Commonwealth v. Calderon, 431 Mass. 21, 25 (2000).
NOTE 3d
Gender. “Gender is among the group affiliations on
which peremptory challenges cannot be based.” Commonwealth v.
Rodriguez, 431 Mass. 804, 807 (2000) (citations and quotation
marks omitted).
NOTE 3e
Presumption. “There is a presumption that peremptory challenges are being used properly. . . . In deciding whether a
party has made the requisite prima facie showing, the makeup of
the entire venire can be taken into account. . . . If the judge decides that the presumption has been rebutted, the burden is shifted
617
Massachusetts Rules of Criminal Procedure
to the party who exercised the challenges to show some group
neutral ground for the challenges. It is then for the judge to determine whether the proffered neutral explanation is legitimate.”
Commonwealth v. LeClair, 429 Mass. 313, 319–20 (1999) (citations omitted).
NOTE 3f
Removal of only minority juror. “If the peremptory
challenge of juror X had left the jury with no minority jurors, a prima facie case of discrimination would have been established.”
Commonwealth v. Serrano, 48 Mass. App. Ct. 163, 165 (1999).
NOTE 3g
Once opportunity for peremptory challenge declined . . . “Once a party has declined an opportunity to exercise a
peremptory challenge as to a particular juror, a peremptory challenge to that juror is no longer available. Rule 6 [of the Rules of
the Superior Court] then expressly provides: ‘No other challenging,
except for cause shown, shall be allowed.’ We have previously
held that deviation from the procedures outlined in Rule 6 constitutes reversible error, even in the absence of prejudice. Commonwealth v. Brown, 395 Mass. 604, 606–607 (1985).” Commonwealth v. Daye, 435 Mass. 463, 471 (2001).
NOTE 3h
Bias. “The question before us is whether the protections against the improper use of peremptory challenges extend to
groups delineated not just by one of the affiliations protected in
Commonwealth v. Soares, [377 Mass. 461 (1979)], but by the
intersection of two of them: race and gender. In other words, is the
use of a peremptory challenge to exclude a juror solely on the
basis of bias presumed to derive from that juror being, for example, a white male or a black female forbidden by the principles
enunciated in Commonwealth v. Soares. . . . We conclude that it
is.” Commonwealth v. Jordan, 439 Mass. 47, 59 (2003).
NOTE 4
Questions Asked by Jurors. “We observe that the
practice of allowing jurors to question witnesses has the potential
for introducing prejudice, delay, and error into the trial, and should
be utilized infrequently and with great caution.” Such questions
should not be oral, but handwritten and passed to the judge.
Commonwealth v. Urena, 417 Mass. 692, 701–02 (1994).
makes known to the court the action which he desires the
court to take or his objection to the action of the court, but
if a party has no opportunity to object to a ruling or order,
the absence of an objection does not thereafter prejudice
him.
If a party objects to a ruling or order of the court, he
may state the precise legal grounds of his objection, but he
shall not argue or further discuss such grounds unless the
court calls upon him for such argument or discussion.
NOTE
Cross-Examination/Bias. “The defendant argues
only one issue in this court. He challenges the trial judge’s refusal
to permit him to test the possible bias of a key prosecution witness
by cross-examining the witness concerning his interest and involvement in a pending Federal forfeiture proceeding involving the
defendant’s house. We agree with the defendant that the crossexamination was erroneously and prejudicially excluded. . . .
“Because bias is intimately related to credibility, a defendant
has the right to cross-examine a prosecution witness in order to
reveal bias. As we recently said, a judge may not restrict crossexamination of a material witness by foreclosing inquiry into a
subject that could show bias or prejudice on the part of the witness.”
Commonwealth v. Koulouris, 406 Mass. 281, 285 (1989)
(quotation marks and citations omitted).
RULE 23
Statements and Reports of Witnesses for Impeachment
Deleted effective Sept. 17, 2012.
RULE 24
Opening Statements; Arguments; Instructions to Jury
(Applicable to Superior Court and jury sessions in District Court.)
(Applicable to Superior Court and jury sessions in District Court.)
(a) Opening and Closing Statements; Arguments
(1) Order of Presentation. The Commonwealth shall
present its opening statement first. The defendant may
present an opening statement of his defense after the opening statement of the Commonwealth or after the close of
the Commonwealth’s evidence. The defendant shall present his closing argument first.
(2) Time Limitation. Counsel for each party shall be
allowed fifteen minutes for an opening statement and thirty
minutes for argument; but before the opening or the argument commences, the judge on motion or sua sponte, may
reasonably reduce or extend the time.
(b) Instructions to Jury; Objection
At the close of the evidence or at such earlier time
during the trial as the judge reasonably directs, any party
may file written requests that the judge instruct the jury on
the law as set forth in the requests. The judge shall inform
counsel of his proposed action upon requests prior to their
arguments to the jury. No party may assign as error the giving
or the failure to give an instruction unless he objects thereto
before the jury retires to consider its verdict, specifying the
matter to which he objects and the grounds of his objection. Upon request, reasonable time shall be given to each
party to object to the charge before the jury retires. Where
either party wishes to object to the charge or to request
additional instructions, the objection or the request shall be
made out of the hearing of the jury, or where appropriate,
out of the presence of the jury.
Exceptions to rulings or orders of the court are unnecessary and for all purposes for which an exception has
heretofore been necessary, it is sufficient that a party, at the
time the ruling or order of the court is made or sought,
NOTE 1
Double Jeopardy. The defendants successfully
moved for a mistrial after the Assistant District Attorney’s opening
statement to the jury.
“The second trial began immediately. Just prior to the empanelment of the second jury, the defendants moved to dismiss
RULE 21
Sequestration of Witnesses
(Applicable to District Court and Superior Court.)
Upon his own motion or the motion of either party,
the judge may, prior to or during the examination of a witness, order any witness or witnesses other than the defendant to be excluded from the courtroom.
NOTE 1
Although it is generally undesirable to have a testifying police officer sit at counsel table, it is within the judge’s discretion to allow it. Commonwealth v. Perez, 405 Mass. 339 (1989).
See also Commonwealth v. Salcedo, 405 Mass. 346 (1989).
NOTE 2
The judge refused “to preclude a witness, who was
under a sequestration order, from sitting in the courtroom after his
testimony had concluded. The judge inquired into the likelihood
that the witness would be recalled, and implicitly concluded that
there was none. The witness was not mentioned on the defendant’s witness list, and counsel made no showing of a need to exclude the witness from the courtroom. The witness was never
recalled. There is no indication that the witness violated the sequestration order by disclosing his testimony to any witness, or
otherwise. It was within the judge’s discretion to modify the sequestration order as she did.” Commonwealth v. Croken, 432
Mass. 266, 269 (2000) (citations omitted).
RULE 22
Objections
3
3
618
Massachusetts Criminal Law Sourcebook & Citator 2013
the indictments based on double jeopardy grounds. That motion
was denied.
“Under Federal law, a defendant who moves for a mistrial
must show that the prosecutor intended to provoke a mistrial or
otherwise engaged in ‘overreaching’ or ‘harassment.’ Oregon v.
Kennedy, 456 U.S. 667, 683 (1982) (Stevens, J., concurring).
Commonwealth v. Lam Hue To, 391 Mass. 301, 310–312 (1984).
As we have noted, the standard for barring a retrial based on double
jeopardy principles is substantially the same under Massachusetts
law. Commonwealth v. Andrews, 403 Mass. 441, 447 n.6, 449
(1988). Gallinaro v. Commonwealth, 362 Mass. 728, 736 (1973).
There was no finding by the judge that the prosecutor had intended to provoke a mistrial, nor does the record reveal such intent.
See Andrews, supra at 448.”
Commonwealth v. Smith, 404 Mass. 1, 4–5 (1989).
See also Note 1 accompanying G.L. c. 263, § 7.
of a finding of guilty of any offense included in the offense
charged in the indictment or complaint.
(c) Appeal
(1) Right of Appeal where Motion for Relief under
Subdivision (b) Is Allowed After a Jury Verdict of Guilty.
The Commonwealth shall have the right to appeal to the
appropriate appellate court a decision of a judge granting
relief under the provisions of subdivisions (b)(1) and (2) of
this rule on a motion for required finding of not guilty after
the jury has returned a verdict of guilty or on an order for
the entry of a finding of guilt of any offense included in
the offense charged in the indictment or complaint.
(2) Costs Upon Appeal. If an appeal or application
therefor is taken by the Commonwealth, the appellate
court, upon the written motion of the defendant supported
by affidavit, may determine and approve the payment to
the defendant of his costs of appeal together with reasonable attorney’s fees, if any, to be paid on the order of the
trial court upon the entry of the rescript or the denial of the
application.
NOTE 2
Retraction of Jury Instruction. “The defendant
also asserts that the judge invaded the province of the jury by not
only refusing to give the manslaughter charge, but also by explaining to them why he would now have to retract the earlier charge he
had given them concerning self-defense. He reminded the jurors
that he had instructed them at great length about self-defense, but
had concluded that was not an option available to them, because
‘the evidence would not support any inference that Santiago started the trouble; that would be beyond reasonable inference and as
a matter of law, speculation and conjecture.’ The method and
extent of a jury charge is within the discretion of the trial judge. It
was within his discretion to correct the impression he may have
left with the jurors regarding self-defense where there was no
evidence to support such a theory.” Commonwealth v. Carrion,
407 Mass. 263, 268–69 (1990) (citations omitted).
NOTE 3
“A trial judge must inform counsel of his proposed
instructions before final argument.” Commonwealth v. Degro, 432
Mass. 319, 332 (2000).
RULE 25
Motion for Required Finding of Not Guilty
(Applicable to District Court and Superior Court.)
(a) Entry by Court
The judge on motion of a defendant or on his own
motion shall enter a finding of not guilty of the offense
charged in an indictment or complaint or any part thereof
after the evidence on either side is closed if the evidence is
insufficient as a matter of law to sustain a conviction on
the charge. If a defendant’s motion for a required finding
of not guilty is made at the close of the Commonwealth’s
evidence, it shall be ruled upon at that time. If the motion
is denied or allowed only in part by the judge, the defendant may offer evidence in his defense without having reserved that right.
(b) Jury Trials
(1) Reservation of Decision on Motion. If a motion
for a required finding of not guilty is made at the close of
all the evidence, the judge may reserve decision on the
motion, submit the case to the jury, and decide the motion
before the jury returns a verdict, after the jury returns a
verdict of guilty, or after the jury is discharged without
having returned a verdict.
(2) Motion after Discharge of Jury. If the motion is
denied and the case is submitted to the jury, the motion
may be renewed within five days after the jury is discharged and may include in the alternative a motion for a
new trial. If a verdict of guilty is returned, the judge may
on motion set aside the verdict and order a new trial, or
order the entry of a finding of not guilty, or order the entry
NOTE 1
Standard. “In reviewing the denial of the defendant’s
motions for required findings of not guilty, the ‘question is whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt’ (emphasis in
original). Commonwealth v. Salemme, 395 Mass. 594, 595 (1985),
quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979).
See Mass.R.Crim.P. 25(a).” Commonwealth v. Cordle, 404 Mass.
733, 739 (1989). “We consider ‘whether the evidence received,
viewed in a light most favorable to the Commonwealth, is sufficient
so that the jury “might properly draw inferences, not too remote in
the ordinary course of events, or forbidden by any rule of law, and
conclude upon all the established circumstances and warranted
inferences that the guilt of the defendant was proved beyond a
reasonable doubt.’ Commonwealth v. Clary, 388 Mass. 583, 588
(1983), quoting Commonwealth v. Vellucci, 284 Mass. 443, 445
(1933). ‘The inferences cannot be too remote but “allowable inferences need not be necessary or inescapable.”’ Commonwealth v.
Lanoue, 392 Mass. 583, 589–590 (1984), quoting Commonwealth
v. Rojas, 388 Mass. 626, 630 (1983).” Commonwealth v. Cordle,
404 Mass. at 739.
NOTE 2
“Although the motion judge did not make a finding
that there was insufficient evidence to warrant the jury’s verdict,
she did state that ‘a motion for a required finding of not guilty
based upon the evidence in this case was of arguable merit. It has
more than a minimal chance of success.’ The motion judge granted Cardenuto a new trial. We agree with the motion judge’s conclusion that trial counsel’s failure to appeal the denial of the motions for required findings of not guilty amounted to ineffective
assistance of counsel. In so doing, we conclude that there was
insufficient evidence to sustain the jury’s verdict. Accordingly, we
hold that trial counsel’s failure to appeal the denial of the motions
for a required finding of not guilty amounted to ineffective assistance of counsel.”
Furthermore, “because the evidence introduced by the Commonwealth was insufficient to sustain the defendant’s conviction,
retrial is barred by the principles of double jeopardy.”
Commonwealth v. Cardenuto, 406 Mass. 450, 453, 457 (1990).
NOTE 3
“We consider only the evidence introduced up to the
time that the Commonwealth rested its case and the defendant
first filed his motions for directed verdicts. The defendant’s rights
became fixed at the time that the Commonwealth rested. In reviewing the denial of motions for required findings of not guilty in
criminal cases, we have frequently said that we must consider and
determine whether the evidence, in its light most favorable to the
Commonwealth, notwithstanding the contrary evidence presented
by the defendant, is sufficient to permit the jury to infer the existence
619
Massachusetts Rules of Criminal Procedure
of the essential elements of the crime charged.” Brown v. Commonwealth, 407 Mass. 84, 85 (1990) (quotation marks, citations
and footnote omitted).
NOTE 4
Deterioration. “Deterioration occurs, for purposes of
deciding whether to allow a motion for required finding of not guilty
at the close of all the evidence, if, after the defendant’s case, the
Commonwealth’s prima facie case has been shown to be ‘incredible or conclusively incorrect.’ Deterioration does not occur simply
because the defendant presented evidence that contradicted the
Commonwealth’s case.” Commonwealth v. Nhut Huynh, 452
Mass. 481, 485 (2008) (citations omitted). See also Commonwealth v. Gomez, 450 Mass. 704, 710 (2008).
NOTE 5
Constitutional Challenge. “Generally, a challenge
to the constitutionality of a statute as applied should be preserved
in a motion for a required finding of not guilty under
Mass.R.Crim.P. 25, as amended, 389 Mass. 1107 (1983). See
Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986) (‘a challenge to . . . a statute as applied might properly be raised before
trial, but it need not be raised until the Commonwealth has presented its evidence showing the circumstances in which the statute
would be applied to a defendant’).” Commonwealth v. Oakes, 407
Mass. 92, 94 (1990).
NOTE 6a
Rule 25(b)(2). “The judge’s option to reduce a verdict offers a means to rectify a disproportionate verdict, among
other reasons, short of granting a new trial. The judge’s power
under 25(b)(2), like our power under G.L. c. 278, § 33E, may be
used to ameliorate injustice caused by the Commonwealth, defense counsel, the jury, the judge’s own error, or, as may have
occurred in this case, the interaction of several causes.” Commonwealth v. Woodward, 427 Mass. 659, 667 (1998) (citation
omitted).
NOTE 6b
“A judge’s discretion to reduce a verdict pursuant to
rule 25(b)(2) is appropriately exercised where the weight of the
evidence in the case, although technically sufficient to support the
jury’s verdict, points to a lesser crime. . . . What is not justified,
however, is reduction to a lesser verdict that would be inconsistent
with the weight of the evidence, or reduction based solely on factors irrelevant to the level of offense proved.” Commonwealth v.
Rolon, 438 Mass. 808, 821–22 (2003) (citations omitted).
NOTE 7
Standard. “In deciding a Rule 25(b)(2) motion using
the required finding standard set out in [Commonwealth v. Latimore, 378 Mass. 671 (1979)], the judge cannot weigh the evidence or assess the credibility of the witness.” Commonwealth v.
Shabo, 47 Mass. App. Ct. 923, 924 (1999) (quotation marks and
citation omitted).
NOTE 8
Jury Instruction After Allowance of Required
Finding Motion. “After the judge allowed the required finding
motion on the charge, he told the jury, “I’ll tell you now that that
indictment has been withdrawn from further consideration by you,
the jury. The jury is advised that you should not speculate about
the reason for the withdrawal . . . .” The judge’s instruction followed our suggestion in Commonwealth v. Pasciuti, 12 Mass. App.
Ct. 833, 840 & n.7 (1981).” Commonwealth v. Kalhauser, 52 Mass.
App. Ct. 339, 347 (2001).
NOTE 9
Double Jeopardy. “Massachusetts Rule of Criminal
Procedure 25(a) directs the trial judge to enter a finding of not
guilty ‘if the evidence is insufficient as a matter of law to sustain a
conviction.’ An order entering such a finding thus meets the definition of acquittal that our double jeopardy cases have consistently
used: It ‘actually represents a resolution, correct or not, of some or
all of the factual elements of the offense charged.’” Smith v. Massachusetts, 543 U.S. 462, 467–68 (2005) (citations omitted).
RULE 26
Requests for Rulings
(Applicable to jury-waived trials in District Court and Superior Court.)
Requests for rulings in the trial of a case shall be in
writing and shall be presented to the court before the be-
ginning of closing arguments, unless consent of the court
is given to present requests later.
RULE 27
Verdict
(Applicable to jury trials in District Court and Superior Court.)
(a) Return
The verdict shall be unanimous. It shall be a general
verdict returned by the jury to the judge in open court. The
jury shall file a verdict slip with the clerk upon the return
of the verdict.
(b) Several Offenses or Defendants
If there are two or more offenses or defendants tried
together, the jury may, with the consent of the judge at any
time during its deliberations return or be required by the
judge to return a verdict or verdicts with respect to the
defendants or charges as to which a verdict has been
reached; and thereafter the jury may in the discretion of
the judge resume deliberation. The judge may declare a
mistrial as to any charges upon which the jury cannot
agree upon a verdict; provided, however, that the judge
may first require the jury to return verdicts on those charges upon which the jury can agree and direct that such verdicts be received and recorded.
(c) Special Questions
The trial judge may submit special questions to the jury.
(d) Poll of Jury
When a verdict is returned and before the verdict is
recorded, the jury may be polled in the discretion of the
judge. If after the poll there is not a unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged.
NOTE 1
Verdict and Postverdict Juror/Jury Interview.
“The verdict is the formal decision of the jury, empaneled and
sworn to try the case, as reported to the court. ‘The verdict which
determines the rights of the parties, and is admitted of record, and
upon which judgment is rendered, is the verdict received from the
lips of the foreman in open court.’ . . .
“We agree with the judge that it was not essential to the validity of the verdict to have the clerk make a notation of it on the back
of the complaint.”
“We have said that ‘[p]ostverdict interview should be initiated
only if the court finds some suggestion that there were extraneous
matters in the jury’s deliberations.’ Commonwealth v. Fidler, 377
Mass. 192, 203 (1979). Faced with such suggestions, a trial judge
properly may conduct a neutral, noncoercive interview with the
juror. See Commonwealth v. Hebert, 379 Mass. 752, 754–755
(1980). However, the scope of that interview is strictly confined to
the issue of whether any extraneous materials or statements might
have come to the jury’s attention before they delivered their verdict. See Commonwealth v. Fidler, supra at 196; Woodward v.
Leavitt, 107 Mass. 453, 466 (1871). The judge is precluded from
inquiring into the internal decision making process of the jury as a
whole or of the individual juror being questioned.” Commonwealth
v. Martell, 407 Mass. 288, 292–95 (1990).
NOTE 2
Jury/Extraneous Matters and Postverdict Juror/
Jury Interview. “The judge ruled that, by not bringing the request
for a transcript to his attention, a court officer usurped the court’s
authority. . . .
“The judge further ruled that a court officer usurped the
court’s authority to communicate with the jury on the record concerning their inability to reach a verdict. . . .
“The judge ruled that the defendant had shown that extraneous matter was introduced to the jury, that the burden then shifted
to the Commonwealth to show beyond a reasonable doubt that the
3
3
620
Massachusetts Criminal Law Sourcebook & Citator 2013
defendant was not prejudiced by that extraneous matter and that
the Commonwealth failed to meet that burden.”
“We continue to believe that lawyer-initiated, postverdict jury
contact not authorized by a judge should not be allowed. . . .
“The negative aspect of a rule as restrictive as that set forth
in the Fidler opinion [377 Mass. 192 (1979)] is that there will be no
process, within the defendant’s control, by which the defendant
can seek to discover whether there were extraneous influences on
the jury, such as inappropriate and potentially prejudicial comments by a court officer. Alleged improprieties may, of course, be
disclosed by a concerned juror. The defendant, however, must let
the information come to him.” Commonwealth v. Solis, 407 Mass.
398, 400–01, 403–04 (1990) (citations omitted).
(c) Notification of Right to Appeal
After a judgment of guilty is entered, the court shall
advise the defendant of his right to appeal. In the District
Court, upon the request of the defendant, the clerk of the
court shall prepare and file forthwith a notice of appeal.
(d) Presentence Investigation
(1) Criminal Record. The probation officer shall inquire into the nature of every criminal case or juvenile
complaint brought before the court and report to the court
information concerning all prior criminal prosecutions or
juvenile complaints, if any, and the disposition of each
such prosecution, except where the defendant was found
not guilty. Such information is to be presented before a
defendant is admitted to bail in court, and also before disposition of the case against him.
(2) Report. The report of the presentence investigation
shall contain any prior criminal or juvenile prosecution
record of the defendant, but shall not contain any information relating to criminal or juvenile prosecutions in
which the defendant was found not guilty. In addition, the
report shall include such other available information as
may be helpful to the court in the disposition of the case.
(3) Availability to Parties. Prior to the disposition the
presentence report shall be made available to the prosecutor
and counsel for the defendant for inspection. In extraordinary cases, the judge may except from disclosure parts of
the report which are not relevant to a proper sentence, diagnostic opinion which might seriously disrupt a program
of rehabilitation, sources of information obtained upon a
promise of confidentiality, or any other information which,
if disclosed, might result in harm, physical or otherwise, to
the defendant or other persons. If the report is not made
fully available, the portions thereof which are not disclosed shall not be relied upon in determining sentence.
No party may make any copy of the presentence report.
(e) Filing.
The court may file a case after a guilty verdict or finding without imposing a sentence if the defendant and the
Commonwealth both consent. With the consent of both
parties, the judge may specify a time limit beyond which
the case may not be removed from the file, and may specify any events that may cause the case to be removed from
the file. The defendant shall file a written consent with the
court as to both the filing of the case and any time limit or
events regarding removal from the file. Prior to accepting
the defendant’s consent, the court shall inform the defendant on the record in open court:
(i) that the defendant has a right to request sentencing
on any or all filed case(s) at any time;
(ii) that subject to any time limit imposed by the court,
the prosecutor may request that the case be removed from
the file and sentence imposed if a related conviction or
sentence is reversed or vacated or upon the prosecutor’s
establishing by a preponderance of the evidence either that
the defendant committed a new criminal offense or that an
event occurred on which the continued filing of the case
was expressly made contingent by the court; and
(iii) that if the case is removed from the file the defendant may be sentenced on the case.
In sentencing the defendant after the removal of a case
from the file, the court shall consider the over-all scheme
of punishment employed by the original sentencing judge.
NOTE 3a
Polling the Jury. For different issues concerning
polling the jury, see Commonwealth v. Nettis, 418 Mass. 715
(1994). See also Commonwealth v. Wilson, 427 Mass. 336, 356
(1998) (“The decision to poll the jurors is within the trial judge’s
discretion. We have concluded that the better practice is to obtain
a clear sign of each juror’s assent to the announced verdict, by
polling the jurors or otherwise. However, we have never required
the judge to poll the jurors unless there is specific evidence that
the verdicts are not unanimous. Absent such evidence, the judge
may properly deny an explicit request by the defendant for a poll.”)
(citations and quotation marks omitted).
NOTE 3b
Timing of Request to Poll Jury. “Any request to
poll the jury must be made before the verdict is recorded, and
judges should not allow untimely requests for polling.” Commonwealth v. Reaves, 434 Mass. 383, 395 (2001).
NOTE 3c
Resuming Deliberations if Not Unanimous. Where
polling of the jury reveals that the verdict was not unanimous, “[a]
judge does not need the jury’s agreement to resume deliberations.
Nothing in Rule 27(d) makes such a step mandatory.” Commonwealth v. Reaves, 434 Mass. 383, 396 n.18 (2001).
NOTE 4
Jury Colloquy. “The colloquy is a ritual that has
developed for the return and recording of a verdict in a criminal
case. The colloquy itself is not required by rule or statute. Its purpose is to allow jurors to express dissent to the court because
such an affirmation is the only evidence the court can receive of
the free and unanimous assent of the jury to the verdict. [In this
case] we conclude that there was ample opportunity for members
of the jury to indicate any lack of assent, and that the failure of the
clerk precisely to follow the ritual did not create a substantial likelihood of a miscarriage of justice.” Commonwealth v. Fowler, 431
Mass. 30, 34–36 (2000) (citations, footnotes, quotations, and
punctuation marks omitted).
RULE 28
Judgment
(Amended Dec. 17, 2008, effective Apr. 1, 2009.) (Applicable to District
Court and Superior Court.)
(a) Judgment
If the defendant has been determined to be guilty, a
verdict or finding of guilty shall be rendered, or if he has
been determined to be not guilty, a verdict or finding of not
guilty shall be rendered, in open court, and shall be entered on the court’s docket.
(b) Imposition of Sentence
After a verdict, finding, or plea of guilty, or a plea of
nolo contendere, or an admission to sufficient facts, the
defendant shall have the right to be sentenced without unreasonable delay. Pending sentence the court may commit
the defendant or continue or alter the bail as provided by
law. Before imposing sentence the court shall afford the
defendant or his counsel an opportunity to speak on behalf
of the defendant and to present any information in mitigation of punishment.
Massachusetts Rules of Criminal Procedure
NOTE 1
District Court Department of the Trial Court Standards of Judicial Practice, Sentencing and Other Dispositions, September 1984, Administrative Office of the District Court, Administrative Regulation, No. 3-84 set forth procedures and forms for
handling sentencing and other dispositions in criminal cases. For
the complete text of these Standards, see Part 5 of this book.
NOTE 2
“The sentence imposed by the judge was within the
statutory limits of G.L. c. 265, § 13A (1988 ed.). ‘The judge is permitted great latitude in sentencing, provided the sentence does not
exceed statutory limits.’” Commonwealth v. O’Connor, 407 Mass.
663, 674 (1990) (quotation marks and citations omitted).
NOTE 3
At the close of the Commonwealth’s case-in-chief,
the judge informed the defendant that he could take the same
sentence as he had originally received at the bench trial. The defendant declined and was ultimately found guilty by the jury. The
judge increased the sentence.
Held, conviction affirmed, the Supreme Judicial Court finding
neither impropriety nor vindictive sentencing by the judge.
Commonwealth v. Morse, 402 Mass. 735, 738–40 (1988).
NOTE 4
See Note 1 accompanying Mass.R.Crim.P. 27.
RULE 29
Revision or Revocation of Sentence
(Applicable to District Court and Superior Court.)
(a) Revision or Revocation
The trial judge upon his own motion or the written
motion of a defendant filed within sixty days after the imposition of a sentence, within sixty days after receipt by
the trial court of a rescript issued upon affirmance of the
judgment or dismissal of the appeal, or within sixty days
after entry of any order or judgment of an appellate court
denying review of, or having the effect of upholding, a
judgment of conviction, may, upon such terms and conditions as he shall order, revise or revoke such sentence if it
appears that justice may not have been done.
(b) Affidavits
If a defendant files a motion pursuant to this rule, he
shall file and serve and the prosecutor may file and serve
affidavits in support of their respective positions. The
judge may rule on a motion filed pursuant to this rule on
the basis of facts alleged in the affidavits without further
hearing.
(c) Notice
The defendant shall serve the prosecutor with a copy
of any motion and affidavit filed pursuant to this rule. If
the judge orders that a hearing be held on the motion, the
court shall give the parties reasonable notice of the time
set for the hearing.
(d) Place of Hearing
A motion filed pursuant to this rule may be heard by
the trial judge wherever he is then sitting.
NOTE 1
“[W]e consider whether a District Court judge had
the authority pursuant to Mass.R.Crim.P. 29, 378 Mass. 899
(1979), to vacate his finding of guilt on a criminal complaint and
enter a continuance without a finding conditioned on a defendant’s
payment of restitution. We conclude that the judge possessed no
such authority under rule 29, or otherwise.
“When considering whether to allow a defendant’s motion to
revise or revoke, a judge may not take into account conduct of the
defendant that occurs subsequent to the original sentencing. By
the explicit terms of rule 29, if a judge determines that justice has
not been done, the judge may revise or revoke a sentence, not a
finding of guilt. When the judge vacated the finding of guilt on the
criminal complaint and entered a continuance without a finding
subject to the payment of restitution, he effectively erased all vestiges of the criminal proceedings against the defendant. Such
621
action was not within the purview of the judge’s authority under
rule 29. . . . The District Court judge’s decision was motivated, as
he acknowledged, by his concern for [the victim] which, while
laudable, had nothing to do with the fairness of the defendant’s
sentence. Therefore, the defendant’s rule 29 motion should not
have been allowed.” Commonwealth v. McCulloch, 450 Mass.
483, 487–88 (2008) (citations, footnotes, and quotation marks
omitted).
NOTE 2
“This sixty-day time period established in the rule is
absolute and may not be extended. . . . Furthermore. . . the judge
would not have had the authority to revise the sentence imposed
by the Appellate Division. The order of the Appellate Division is
final. See G.L. c. 278, § 28B.” Commonwealth v. Callahan, 419
Mass. 306, 308–09 (1995).
NOTE 3
A motion to revise and revoke must be heard within
a reasonable time. Six years is unreasonable. Commonwealth v.
Barclay, 424 Mass. 377, 380 (1997).
NOTE 4
“By allowing a motion to revise and revoke sentences when the parole board does not act in accordance with a
judge’s expectations, the judge is interfering with the executive
function. The judge cannot nullify the discretionary actions of the
parole board.” Commonwealth v. Amirault, 415 Mass. 112, 116–17
(1993) (footnote omitted).
NOTE 5
“If there is a finding of ineffective assistance of
counsel based on counsel’s failure to file in a timely manner, as he
promised, a motion to revise and revoke sentence, the judge
should vacate the sentence and reimpose it, thereby affording the
defendant an opportunity to file timely a motion pursuant to
Mass.R.Crim.P. 29(a) to revise the new sentence.” Commonwealth v. Stubbs, 15 Mass. App. Ct. 955 (1983). See also Commonwealth v. McNulty, 42 Mass. App. Ct. 955, 956–57 (1997).
NOTE 6
Appeal. “[W]e conclude that the order of the District
Court judge that denied the defendant’s motion to revise or revoke
his sentence under rule 29 was immediately appealable.” Commonwealth v. Richards, 44 Mass. App. Ct. 478, 481 & n.4 (1998)
(“The better practice, of course, is for the defendant to file a motion for post-conviction relief pursuant to [Rule 30], and to take an
appeal under subparagraph (e)(8) of that rule. It would be elevating form over substance, however, to hold that this is an exclusive
remedy and that it is not open to the defendant to file an appeal
directly from the denial of the motion to revise or revoke in order to
correct an illegal sentence. In the future, therefore, a clerk should
accept for filing a defendant’s notice of appeal from a rule 29 order
unless there is a rule 30 motion on file.”) (citation omitted).
NOTE 7
Increase of Sentence. “There is no merit to the
defendant’s argument that the judge could not, in revising the
sentences, increase their severity. Under Mass.R.Crim.P. 29 . . . a
judge has the authority on his own motion to revoke and revise a
sentence and increase its severity if it appears that justice may not
have been done.” Commonwealth v. Carver, 33 Mass. App. Ct.
378, 390 (1992) (footnote and citations omitted).
NOTE 8
Judge’s Authority. “The issue in this case is whether
a judge has the authority under Mass. R. Crim. P. 29(a) . . . to
reduce a sentence after the defendant and the Commonwealth
had entered into a plea agreement in which the Commonwealth
agreed not to seek indictments against the defendant on the pending charges, the defendant had agreed to plead guilty to the
charges and join the prosecutor’s sentencing recommendation,
and the judge had imposed the recommended sentence. We conclude that where, as here, a judge acts on his own timely motion to
revise or revoke a sentence, the judge has the authority to reduce
a sentence where ‘it appears that justice may not have been done’
regardless whether a plea agreement includes an agreed sentence recommendation.” Commonwealth v. Rodriguez, 461 Mass.
256, 256–57 (2012).
NOTE 9
“One cannot file a motion to revise or revoke without
stating the grounds on which it is based. Commonwealth v. DeJesus, 440 Mass. 147, 152 (2003).” Commonwealth v. Fenton F.,
442 Mass. 31, 39 (2004).
3
622
Massachusetts Criminal Law Sourcebook & Citator 2013
RULE 30
Post Conviction Relief
(8) Appeal. An appeal from a final order under this
rule may be taken to the Appeals Court, or to the Supreme
Judicial Court in an appropriate case, by either party.
(A) If an appeal is taken, the defendant shall not be
discharged from custody pending final decision upon the
appeal; provided, however, that the defendant may, in the
discretion of the judge, be admitted to bail pending decision of the appeal.
(B) If an appeal or application therefor is taken by the
Commonwealth, upon written motion supported by affidavit, the Appeals Court or the Supreme Judicial Court may
determine and approve payment to the defendant of his
costs of appeal together with reasonable attorney’s fees, if
any, to be paid on the order of the trial court after entry of
the rescript or the denial of the application. If the final
order grants relief other than a discharge from custody, the
trial court or the court in which the appeal is pending may,
upon application by the Commonwealth, in its discretion,
and upon such conditions as it deems just, stay the execution of the order pending final determination of the matter.
(9) Appeal under G.L. c. 278, § 33E. If an appeal or
application for leave to appeal is taken by the Commonwealth under the provisions of Chapter 278, Section 33E,
upon written notice supported by affidavit, the Supreme
Judicial Court may determine and approve payment to the
defendant of the costs of appeal together with reasonable
attorney’s fees to be paid on order of the trial court after
entry of the rescript or the denial of the application.
(Amended Sept. 6, 2001, effective Oct. 1, 2001.) (Applicable to District
Court and Superior Court.)
3
(a) Unlawful Restraint
Any person who is imprisoned or whose liberty is restrained pursuant to a criminal conviction may at any time,
as of right, file a written motion requesting the trial judge
to release him or her or to correct the sentence then being
served upon the ground that the confinement or restraint
was imposed in violation of the Constitution or laws of the
United States or of the Commonwealth of Massachusetts.
(b) New Trial
The trial judge upon motion in writing may grant a
new trial at any time if it appears that justice may not have
been done. Upon the motion the trial judge shall make
such findings of fact as are necessary to resolve the defendant’s allegations of error of law.
(c) Post Conviction Procedure
(1) Service and Notice. The moving party shall serve
the office of the prosecutor who represented the Commonwealth in the trial court with a copy of any motion
filed under this rule.
(2) Waiver. All grounds for relief claimed by a defendant under subdivisions (a) and (b) of this rule shall be
raised by the defendant in the original or amended motion.
Any grounds not so raised are waived unless the judge in
the exercise of discretion permits them to be raised in a
subsequent motion, or unless such grounds could not reasonably have been raised in the original or amended motion.
(3) Affidavits. Moving parties shall file and serve and
parties opposing a motion may file and serve affidavits
where appropriate in support of their respective position.
The judge may rule on the issue or issues presented by
such motion on the basis of the facts alleged in the affidavits without further hearing if no substantial issue is raised
by the motion or affidavits.
(4) Discovery. Where affidavits filed by the moving
party under subdivision (c)(3) establish a prima facie case
for relief, the judge on motion of any party, after notice to
the opposing party and an opportunity to be heard, may
authorize such discovery as is deemed appropriate, subject
to appropriate protective order.
(5) Counsel. The judge in the exercise of discretion
may assign or appoint counsel in accordance with the provisions of these rules to represent a defendant in the preparation and presentation of motions filed under subdivisions
(a) and (b) of this rule. The court, after notice to the Commonwealth and an opportunity to be heard, may also exercise discretion to allow the defendant costs associated with
the preparation and presentation of a motion under this rule.
(6) Presence of Moving Party. A judge may entertain
and determine a motion under subdivisions (a) and (b) of
this rule without requiring the presence of the moving party at the hearing.
(7) Place and Time of Hearing. All motions under
subdivision (a) and (b) of this rule may be heard by the
trial judge wherever the judge is then sitting. The parties
shall have at least thirty days’ notice of any hearing unless
the judge determines that good cause exists to order the
hearing held sooner.
NOTE 1
General Rule. “The judge is to apply the standard
set out in rule 30 ‘rigorously,’ and may grant a motion to withdraw
a guilty plea only if it appears that justice may not have been done.
The motion is addressed to the sound discretion of the judge. . . .
“As a general rule, a judge may decide a motion for a new trial based solely on affidavits, and additional testimony need not be
heard. . . . However, when a defendant attacks a conviction based
upon a guilty plea, she has the choice between two tactics. She
may stand on the contemporaneous record, the record made in
the case through the stage of the colloquy and conviction. If the
defendant chooses this route, it is not open to the Commonwealth
to introduce extraneous evidence tending to show that the defendant in fact acted freely and intelligently in tendering the plea. Alternatively, the defendant may offer extraneous evidence to supplement (or contradict) the record, but in that event the Commonwealth has a like right to offer evidence.”
Commonwealth v. Conaghan, 48 Mass. App. Ct. 304, 308–09
(1999).
NOTE 2
Voluntariness. “Where a defendant wishing to withdraw a guilty plea challenges the voluntary or intelligent nature of
his plea, it is ordinarily the Commonwealth’s burden to show by
means of a contemporaneous or reconstructed record of the plea
that it was entered understandably and voluntarily. . . . The concept of voluntariness requires that the defendant tender the plea
free from coercion, duress, or improper inducements. To determine the voluntariness of the defendant’s plea, the judge should
conduct a real probe of the defendant’s mind. The judge should
also determine whether the plea was being extracted from the
defendant under undue pressure, whether the defendant was
being treated for or was aware of any mental illness from which he
may be suffering, and whether the defendant was under the influence of alcohol or drugs.” Commonwealth v. Conaghan, 48 Mass.
App. Ct. 304, 314–15 (1999) (citation, quotation, and punctuation
marks omitted).
NOTE 3
“It is a very uphill battle for a party to establish that a
judge acting on a motion for a new trial abused his discretion.
Appellate courts give great deference to the judge’s disposition of
623
Massachusetts Rules of Criminal Procedure
such a motion and rarely reverse.” Commonwealth v. Hammond,
50 Mass. App. Ct. 171, 178 (2000).
NOTE 4
Evidentiary Hearing. “A judge may rule on a motion
for a new trial without an evidentiary hearing if no substantial issue
is raised by the motion or accompanying affidavits.” Commonwealth v. Vinton, 432 Mass. 180, 183 n.2 (2000).
NOTE 5
Discovery. “To meet the prima facie case standard
for discovery under a motion for a new trial based on newly discovered evidence, a defendant must make specific, not speculative or conclusory, allegations that the newly discovered evidence
would have ‘materially aid[ed] the defense against the pending
charges,’ Commonwealth v. Tucceri, 412 Mass. 401, 405 (1992),
and that this evidence, if explored further through discovery, could
yield evidence that might have ‘played an important role in the
jury’s deliberation and conclusions, even though it is not certain
that the evidence would have produced a verdict of not guilty.’ Id.
at 414.” Commonwealth v. Daniels, 445 Mass. 392, 407 (2005).
NOTE 6
Costs. For a discussion of attorney fees and costs
under this rule, see Commonwealth v. Phinney, 448 Mass. 621
(2007).
NOTE 7a
Immigration Consequences. “We agree with Padilla that constitutionally competent counsel would have advised
him that his conviction for drug distribution made him subject to
automatic deportation. Whether he is entitled to relief depends on
whether he has been prejudiced, a matter that we do not address.”
Padilla v. Kentucky, 130 S. Ct. 1473, 1478 (2010).
NOTE 7b
Retroactivity. “[W]e conclude that the holding in
[Padilla v. Kentucky, 130 S.Ct. 1473 (2010)] is to be applied retroactively to criminal convictions obtained after the effective date of
IIRIRA [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546], April 1,
1997, the point at which deportation became ‘intimately related to
the criminal process’ and ‘nearly an automatic result for a broad
class of noncitizen offenders.’ Padilla, [130 S.Ct.] at 1481.” Commonwealth v. Clarke, 460 Mass. 30, 45 (2011).
RULE 31
Stay of Execution; Relief Pending Review
(Amended June 24, 2009, effective Oct. 2, 2009.) (Applicable to Superior
Court and de novo trials in District Court.)
(a) Imprisonment. If a sentence of imprisonment is
imposed upon conviction of a crime, the entry of an appeal
shall not stay the execution of the sentence unless the
judge imposing it or, pursuant to Mass. R. App. P. 6, a single justice of the court that will hear the appeal, determines in the exercise of discretion that execution of said
sentence shall be stayed pending the determination of the
appeal. If execution of a sentence of imprisonment is
stayed, the judge or justice may at that time make an order
relative to the custody of the defendant or for admitting the
defendant to bail.
(b) If the application for a stay of execution of sentence is allowed, the order allowing the stay may state the
grounds upon which the stay may be revoked and, in any
event, shall state that upon release by the appellate court of
the rescript affirming the conviction, stay of execution
automatically expires unless extended by the appellate
court. Any defendant so released shall provide prompt
written notice to the clerk of the trial court regarding the
defendant’s current address and promptly notify the clerk
in writing of any change thereof. The clerk shall notify the
appellate court that will hear the appeal that a stay of execution of sentence has been allowed. At any time after the
stay expires, the Commonwealth may move in the trial
court to execute the sentence. The court shall schedule a
prompt hearing and issue notice thereof to the defendant
unless the prosecutor requests, for good cause shown, that
a warrant shall issue.
(c) Fine. If a reservation, filing, or entry of an appeal
is made following a sentence to pay a fine or fine and
costs, the sentence shall be stayed by the judge imposing it
or by a single justice of the court that will hear the appeal
if there is a diligent perfection of appeal.
(d) Probation or Suspended Sentence. An order
placing a defendant on probation or suspending a sentence
may be stayed if an appeal is taken.
NOTE
“[T]he same factors specified in [G.L. c. 276,] § 58
[governing bail] may properly be considered under § 4. In addition,
consideration should be given to danger to any other person or to
the community and to the possibility of further acts of criminality
during the pendency of the appeal. Finally, the judge or Justice
should consider the likelihood of success on the merits of the appeal. There is no requirement, however, that he give a statement
of reasons or make any particular finding or certification in order to
grant or deny the stay.” Commonwealth v. Allen, 378 Mass. 489,
498 (1979).
RULE 32
Filing and Service of Papers
(Applicable to District Court and Superior Court.)
(a) Service: When Required
Written motions other than those which are heard ex
parte, written notices, and similar papers shall be served
upon each of the parties.
(b) Service: How Made
Whenever under these rules or by order of court service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the
attorney, unless service upon the party himself is ordered
by the court. Service upon the attorney or upon a party
shall be made in the manner provided for in civil actions.
(c) Notice of Orders and Judgments
If upon the entry of a judgment or order made on a
written motion either or both of the parties are not present
in court, the clerk shall immediately mail to the absent
party or parties a notice of that entry and shall record the
mailing in the docket.
(d) Filing
Papers required to be served shall be filed with the
court. Papers shall be filed in the manner provided for in
civil actions.
(e) Additional Time after Service by Mail
Whenever a party has the right or is required to do an
act within a prescribed period after the service of a notice
or other paper upon him and the notice or other paper is
served upon him by mail, three days shall be added to the
prescribed period.
RULE 33
Counsel for Defendants Indigent and Indigent but Able
to Contribute
(Applicable to District Court and Superior Court.)
The assignment of counsel for defendants determined
to be indigent or indigent but able to contribute shall be
governed by the provisions of G.L. c. 211D and Supreme
Judicial Court Rule 3:10.
NOTE 1
Burden of Proof. “[W]e hold that a defendant seeking appointment of counsel at public expense bears the burden of
3
3
624
Massachusetts Criminal Law Sourcebook & Citator 2013
proving her indigency by a preponderance of the evidence. We
further hold that S.J.C. Rule 3:10, § 1 (b) (ii), does not violate any
guarantee of the Federal or State Constitution.” Commonwealth v.
Porter, 462 Mass. 724, 736 (2012).
An order to take a deposition shall authorize the issuance by the clerk of summonses pursuant to Rule 17 for
the persons and objects named or described in such order.
A witness whose deposition is to be taken may be required
to attend at any place designated by the trial court, taking
into account the convenience of the witness and the parties.
(c) Notice of Taking of Deposition
The party on whose motion a deposition is to be taken
shall give all interested persons reasonable written notice
of the time and place for the taking of the deposition. If a
defendant is in custody, the officer having custody of the
defendant shall be notified by the court of the time and
place set for taking of the deposition and shall produce the
defendant at that time and place and keep him in the
presence of the witness during the taking of the deposition.
A defendant not in custody shall have the right to be present at the taking of a deposition, but his failure to appear
after notice and without cause shall constitute a waiver of
the right to be present and of all objections based upon that
right.
(d) Payment of Expenses
Whenever a deposition is taken upon motion of the
Commonwealth, the court shall direct that the reasonable
expenses of travel and subsistence of the defendant and his
counsel and the witness be paid for by the Commonwealth. Expenses for a deposition taken upon motion of a
defendant may be assessed to the defendant to be paid forthwith or in such other manner as the judge may determine.
(e) Scope of Examination
Subject to such additional conditions as the judge may
specify and except as otherwise provided in these rules,
the taking of depositions in criminal cases shall be in the
manner provided for in civil actions. The scope and manner of examination and cross-examination at the taking of
the deposition shall be such as would be allowed in the
trial itself.
(f) Objections to Deposition Testimony
Objections to deposition testimony or evidence or
parts thereof and the grounds for the objections shall be
stated at the time of the taking of the deposition.
(g) Admissibility
At a trial or upon any hearing, a part or all of a deposition, so far as it is otherwise admissible under the law of
evidence, may be used as substantive evidence if the judge
finds that the deponent is unavailable or if the deponent
gives testimony at the trial or hearing which is inconsistent
with his deposition. Any deposition may be used by any
party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness. “Unavailable” as a
witness includes situations in which the deponent:
(1) is exempt by a ruling of the judge on the ground of
privilege from testifying concerning the subject matter of
his deposition;
(2) persists in refusing to testify concerning the subject matter of his deposition despite an order of the judge
to do so;
(3) lacks memory of the subject matter of his deposition;
(4) is unable to be present or to testify at the trial or
hearing because of death or physical or mental illness or
infirmity;
NOTE 2a
Constitutionality and Contribution by Spouse,
Girlfriend, Parent. “Requiring the defendant to prove his indigency is not unconstitutional. See [Commonwealth v.] Porter, [462
Mass. 724, 733 (2012)]. Consideration of the available funds of a
defendant’s spouse or the substantial equivalent (here, girl friend),
or a defendant’s parent, under S.J.C. Rule 3:10, § 1 (b) (ii) or (iii),
in determining whether a defendant is indigent does not infringe on
or violate the right to counsel afforded by the Sixth Amendment or
art. 12.” Commonwealth v. Fico, 462 Mass. 737, 748 (2012).
NOTE 2b
“[A] spouse has a duty to contribute to the cost of
necessaries for the support and maintenance of the other spouse.
G.L. c. 209, § 1. . . . Although occasionally a spouse or parent
meeting the criteria of § 1(b)(ii) may refuse to pay, this fact does
not in itself reduce the presumption to an arbitrary mandate.”
Commonwealth v. Porter, 462 Mass. 724, 735–36 (2012) (footnote
omitted).
NOTE 3
IRA Funds. “[W]e conclude that a judge applying
S.J.C. Rule 3:10 may properly consider funds held in IRAs to be
available funds in the indigency determination, at least absent
evidence demonstrating that a Federal statute or federally regulated retirement plan structure makes such funds in a particular case
completely unavailable to a defendant as a matter of law, a burden
the defendant has not met here.” Commonwealth v. Mortimer, 462
Mass. 749, 759 (2012).
RULE 34
Report
If, prior to trial, or, with the consent of the defendant,
after conviction of the defendant, a question of law arises
which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the
judge may report the case so far as necessary to present the
question of law arising therein. If the case is reported prior
to trial, the case shall be continued for trial to await the
decision of the Appeals Court.
RULE 35
Depositions to Perpetuate Testimony
(Applicable to District Court and Superior Court.)
(a) General Applicability
Whenever due to exceptional circumstances, and after
a showing of materiality and relevance, it is deemed to be
in the interest of justice that the testimony of a prospective
witness of the defendant or the Commonwealth be taken
and preserved, the judge may at any time after the filing of
a complaint or return of an indictment, upon his own motion or the motion of either party with notice to all interested persons, order that the testimony of the witness be
taken by deposition and that any designated book, paper,
document, record, recording, or other material not privileged be produced at the same time and place. If a witness
is committed for failure to give bail to appear to testify at a
trial or hearing, the judge may direct that his deposition be
taken. A copy of a deposition ordered upon the judge’s
own motion shall be transmitted to the court by the person
administering the deposition. In determining a motion filed
pursuant to this rule, the judge may order a hearing or may
determine whether exceptional circumstances exist and the
materiality and relevance of the testimony on the basis of
the supporting affidavit.
(b) Summonses
Massachusetts Rules of Criminal Procedure
(5) is absent from the trial or hearing and the proponent
of the deposition has been unable to procure the deponent’s attendance by process or other reasonable means; or
(6) is absent from the trial or hearing and his testimony
was ordered taken and preserved pursuant to Rule 6(d)(2).
A deponent is not unavailable as a witness if his exemption, refusal, claim of lack or memory, inability, or
absence is due to the procurement or wrongdoing of the
proponent of his deposition for the purpose of preventing
the deponent from attending or testifying.
(h) Notice
(1) District Court. All interested parties shall be given
reasonable notice by the clerk of the time set for hearing
motions filed under this rule.
(2) Superior Court. The moving party shall notify all
interested parties of the time set for hearing motions filed
under this rule at least seven days prior to the hearing.
(i) Deposition by Agreement Not Precluded
Nothing in this rule shall preclude the taking of a deposition, orally or upon written questions, by agreement of
the parties with the consent of the judge.
RULE 36
Case Management
(Applicable to District Court and Superior Court.)
(a) General Provisions
(1) Order of Priorities. The trial of defendants in custody awaiting trial and defendants whose pretrial liberty is
reasonably believed to present unusual risks to society
shall be given preference over other criminal cases.
(2) Function of the Court.
(A) District Court. The court shall determine the sequence of the trial calendar.
(B) Superior Court. The court shall determine the sequence of the trial calendar after cases are selected for
prosecution by the district attorney.
(b) Standards of a Speedy Trial
The time limitations in this subdivision shall apply to
all defendants as to whom the return day is on or after the
effective date of these rules. Defendants arraigned prior to
the effective date of these rules shall be tried within twenty-four months after such effective date.
(1) Time Limits. A defendant, except as provided by
subdivision (d)(3) of this rule, shall be brought to trial
within the following time periods, as extended by subdivision (b) (2) of this rule:
(A) during the first twelve-month period following the
effective date of this rule, a defendant shall be tried within
twenty-four months after the return day in the court in
which case is awaiting trial.
(B) during the second such twelve-month period, a defendant shall be tried within eighteen months after the
return day in the court in which the case is awaiting trial.
(C) during the third and all successive such twelvemonth periods, a defendant shall be tried within twelve
months after the return day in the court in which the case
is awaiting trial.
(D) If a retrial of the defendant is ordered, the trial
shall commence within one year after the date the action
occasioning the retrial becomes final, as extended by subdivision (b)(2) of this rule. The order of an appellate court
requiring a retrial is final upon the issuance by the appel-
625
late court of the rescript. In the event that the clerk of the
appellate court fails to issue the rescript within the time
provided for in Massachusetts Rule of Appellate Procedure
23, retrial shall commence within one year after the date
when the rescript should have issued.
If a defendant is not brought to trial within the time
limits of this subdivision, as extended by subdivision, (b)(2),
he shall be entitled upon motion to a dismissal of the
charges.
(2) Excluded Periods. The following periods shall be
excluded in computing the time within which the trial of
any offense must commence:
(A) Any period of delay resulting from other proceedings concerning the defendant, including, but not limited to:
(i) delay resulting from an examination of the defendant, and hearing on, his mental competency, or physical
incapacity;
(ii) delay resulting from a stay of the proceedings due
to an examination or treatment of the defendant pursuant
to section 47 of chapter 123 of the General Laws;
(iii) delay resulting from a trial with respect to other
charges against the defendant, which period shall run from
the commencement of such other trial until fourteen days
after an acquittal or imposition of sentence;
(iv) delay resulting from interlocutory appeals
(v) delay resulting from hearings on pretrial motions;
(vi) delay resulting from proceedings relating to transfer
to or from other divisions or counties pursuant to Rule 37;
(vii) delay reasonably attributable to any period, not to
exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.
(B) Any period of delay resulting from the absence or
unavailability of the defendant or an essential witness. A
defendant or an essential witness shall be considered absent when his whereabouts are unknown and he is attempting to avoid apprehension or prosecution or his whereabouts cannot be determined by due diligence. A defendant
or an essential witness shall be considered unavailable
whenever his whereabouts are known but his presence for
trial cannot be obtained by due diligence or he resists appearing at or being returned for trial.
(C) Any period of delay resulting from the fact that
the defendant is mentally incompetent or physically unable
to stand trial.
(D) If the complaint or indictment is dismissed by the
prosecution and thereafter a charge is filed against the defendant for the same or a related offense, any period of
delay from the date the charge was dismissed to the date
the time limitation would commence to run as to the subsequent charge.
(E) A reasonable period of delay when the defendant
is joined for trial with a codefendant as to whom the time
for trial has not run and there is no cause for granting a
severance.
(F) Any period of delay resulting from a continuance
granted by a judge on his own motion or at the request of
the defendant or his counsel or at the request of the prosecutor, if the judge granted the continuance on the basis of
his findings that the ends of justice served by taking such
action outweighed the best interests of the public and the
defendant in a speedy trial. No period of delay resulting
from a continuance granted by the court in accordance
3
3
626
Massachusetts Criminal Law Sourcebook & Citator 2013
with this paragraph shall be excludable under this subdivision unless the judge sets forth in the record of the case,
either orally or in writing, his reasons for finding that the
ends of justice served by the granting of the continuance
outweigh the best interests of the public and the defendant
in a speedy trial.
(G) Any period of time between the day on which a
defendant or his counsel and the prosecuting attorney
agree in writing that the defendant will plead guilty or
nolo contendere to the charges and such time as the judge
accepts or rejects the plea arrangement.
(H) Any period of time between the day on which the
defendant enters a plea of guilty and such time as an order
of the judge permitting the withdrawal of the plea becomes
final.
(3) Computation of Time Limits. In computing any
time limit other than an excluded period, the day of the act
or event which causes a designated period of time to begin
to run shall not be included. Computation of an excluded
period shall include both the first and the last day of the
excludable act or event.
(c) Dismissal for Prejudicial Delay
Notwithstanding the fact that a defendant is not entitled to a dismissal under subdivision (b) of this rule, a defendant shall upon motion be entitled to a dismissal where
the judge after an examination and consideration of all
attendant circumstances determines that: (1) the conduct of
the prosecuting attorney in bringing the defendant to trial
has been unreasonably lacking in diligence and (2) this
conduct on the part of the prosecuting attorney has resulted in prejudice to the defendant.
(d) Special Procedures: Persons Serving Term of Imprisonment
(1) General Provisions. A person serving a term of
imprisonment either within or without the prosecuting
jurisdiction is entitled to all safeguards afforded him under
subdivisions (a), (b), and (c) of this rule in the conduct of
any criminal proceeding, subject to the limitations stated
herein.
(2) Persons Detained Within the Commonwealth. Any
person who is detained within the Commonwealth upon
the unexecuted portion of a sentence imposed pursuant to
a criminal proceeding is entitled to be tried upon any untried indictment or complaint pending against him in any
court in this Commonwealth within the time prescribed by
subdivision (b) of this rule.
(3) Persons Detained Outside the Commonwealth.
Any person who is detained outside the Commonwealth
upon the unexecuted portion of a sentence imposed pursuant
to a criminal proceeding, and against whom an untried indictment or complaint is pending within the Commonwealth
shall, subsequent to the filing of a detainer, be notified by
the prosecutor by mail of such charges and of his right to
demand a speedy trial. If the defendant pursuant to such
notification does demand trial, the person having custody
shall so certify to the prosecutor, who shall promptly seek
to obtain the presence of the defendant for trial. If the
prosecutor has unreasonably delayed (A) in causing a detainer to be filed with the official having custody of the
defendant, or (B) in seeking to obtain the defendant’s
presence for trial, and the defendant has been prejudiced
thereby, the pending charges against the defendant shall be
dismissed.
(e) Effect of a Dismissal
A dismissal of any charge ordered pursuant to any
provision of this rule shall apply to all related offenses.
(f) Case Status Reports
(1) District Court. The First Justice of each division of
the District Court shall be advised periodically by the clerk
of the status of all cases which have been pending in that
court for six months or longer. The report shall be transmitted to the Administrative Justice for the District Court
Department.
(2) Superior Court. The Administrative Justice for the
Superior Court Department shall be notified by the clerk
for each county of the status of all cases which have been
pending in that court for six months or longer within the
following time periods:
(A) for the first twelve-month period following the effective date of this rule, sixty days after the last day of a
sitting;
(B) for the second such twelve-month period, fortyfive days after the last day of a sitting;
(C) for the third and all successive such twelve-month
periods, thirty days after the last day of a sitting.
Such notice shall include the number of the case, the
name of the defendant, the offense charged, the name of
the defense counsel, if any, and the name of the prosecutor.
NOTE 1a
“Delay in which the defendant acquiesces or from
which he benefits should be excluded in measuring the length of
any delay. A failure to object to a continuance or other delay constitutes acquiescence.” Commonwealth v. Tanner, 417 Mass. 1, 3
(1994) (citation omitted). See also Commonwealth v. Marable, 427
Mass. 504 (1998).
NOTE 1b
“Certainly the fifty-three month span between the
defendant’s arraignment and his trial is sufficient to invoke a constitutionally-based speedy trial analysis. . . . [T]he defendant
agreed to various continuances and sought others. The record
does not indicate the defendant’s zealous pursuit of his right to a
speedy trial. Most important is the fact that the defendant cannot
show that he was significantly prejudiced by the delay.” Commonwealth v. Lanigan, 419 Mass. 15, 18–19 (1994).
NOTE 1c
“Rule 36(b), as it applies to this case, requires that a
defendant shall be tried within twelve months after the ‘return day,’
and if the defendant is not tried within that period, as it may be
extended by subdivision (b)(2) of the rule, the defendant ‘shall be
entitled upon motion to a dismissal of the charges.’ Rule 36(b)(1).
‘“Return Day” means the day upon which a defendant is ordered
by summons to first appear or, if under arrest, does first appear
before a court to answer to the charges against him, whichever is
earlier.’ Mass.R.Crim.P. 2(b)(15), 378 Mass. 844 (1979). Since
this defendant was under arrest, the date of his arraignment, August 30, 1983, was the return day, see Barry v. Commonwealth,
390 Mass. 285, 291 (1983), and he was entitled to be tried within
twelve months of that date unless the Commonwealth established
that further delay was justified. The burden of proof relative to
justification is on the Commonwealth. Commonwealth v. Campbell,
401 Mass. 698, 702, 704 (1988). Barry v. Commonwealth, supra
at 291, 294.
“The commencement of trial after the expiration of the twelvemonth period may be justified not only by the provision in rule
36(b)(2) for ‘[e]xcluded [p]eriods,’ but also by the Commonwealth’s
demonstration that the defendant acquiesced in other periods of
delay, or they benefited him or he was responsible for them.
Commonwealth v. Campbell, supra at 702 (citing Commonwealth
v. Farris, 390 Mass. 300, 305 (1983), and Barry v. Commonwealth, supra at 295).”
627
Massachusetts Rules of Criminal Procedure
Commonwealth v. Mattos, 404 Mass. 672, 674–75 (1989).
NOTE 2
Appellate Procedure. “This appeal [by the Commonwealth] was not entered in the Appeals Court for more than
two years after the notice of appeal was filed. . . . [While] it is clear
that the glacial pace with which this case proceeded toward appellate resolution is not what is contemplated by the rules of appellate
procedure [the defendant’s motion to dismiss should not be allowed]. . . .
“The guaranty of a speedy trial set forth in the Sixth Amendment to the United States Constitution (and art. 11 of the Massachusetts Declaration of Rights) is not read as applying to the appellate process. . . .
“[T]o prevail on his constitutional due process argument, the
defendant must show that the delay, which was clearly inordinate,
was significantly prejudicial.”
Commonwealth v. Hudson, 404 Mass. 282, 283–84, 285
(1989) (citations and quotation marks omitted).
NOTE 3
“Where a criminal defendant charged with first degree murder was led reasonably to believe she would not be tried
by the prosecutor’s unconditional promises not to oppose her plea
of guilty to manslaughter and to recommend no incarceration beyond time served, she was held not to have acquiesced, when the
promises were withdrawn, to a nearly three-year delay in her trial,
and thus her motion to dismiss under Mass.R.Crim.P. 36 (b) was
correctly allowed.” Commonwealth v. Campbell, 401 Mass. 698
(1988) (syllabus).
RULE 37
Transfer of Cases
(Applicable to District Court and Superior Court.)
(a) Transfer for Plea and Sentence
(1) District Court. A defendant against whom a complaint is pending and who appears in District Court,
whether under arrest or pursuant to a summons, and
against whom a complaint is pending in a division other
than that in which he appears, may state in writing that he
wishes to plead guilty or nolo contendere, to waive trial in
the division in which the other complaint is pending, and
to consent to disposition of the case in the division in
which he appears. The District Court in which the defendant
appears may order that the other complaint be transferred
for disposition, subject to the written approval of the prosecutor in each division.
(2) Superior Court. A defendant against whom a complaint or indictment is pending and who appears in Superior Court, whether under arrest or pursuant to a summons,
and against whom a complaint or indictment is pending in
a county other than that in which he appears, may state in
writing that he wishes to plead guilty or nolo contendere,
to waive trial in the county in which the other complaint or
indictment is pending, and to consent to disposition of the
case in the county in which he appears. The Superior
Court in which the defendant appears may order that the
other complaint or indictment be transferred for disposition, subject to the written approval of the prosecuting
attorney in each county.
(3) Effect of Not Guilty Plea. If after a proceeding has
been transferred pursuant to subdivision (a) of this rule the
defendant pleads not guilty, the clerk shall return the papers transmitted pursuant to subdivision (c) of this rule to
the court in which the prosecution was commenced, and
the proceeding shall be restored to the docket of that court.
(b) Transfer for Trial
(1) Transfer for Prejudice. A judge upon his own motion or the motion of a defendant or the Commonwealth
made prior to trial may order the transfer of a case to another division or county for trial if the court is satisfied
that there exists in the community where the prosecution is
pending so great a prejudice against the defendant that he
may not there obtain a fair and impartial trial.
(2) Transfer of Other Cases. A judge, upon motion of
a defendant made pursuant to subdivision (3) or (4) of
Rule 9(a), and after taking into account the convenience of
the court, the parties, and their witnesses, may with the
written approval of the prosecuting attorney in each division or county order the transfer and consolidation for trial
of any or all charges pending against the defendant in the
several divisions or counties of the Commonwealth.
(c) Proceedings on Transfer
Upon receipt of the defendant’s statement and the
written approval of the prosecutor required by this rule, the
clerk of the court in which a complaint or indictment is
pending shall transfer the papers in the case and any bail
taken to the clerk of the court to which the case is transferred. The clerk of the transferee court shall make immediate entry of the case upon the docket of that court and
shall so notify the clerk of the transferor court so that the
case may be closed on the docket of that court. The prosecution shall continue in the transferee court.
RULE 38
Disability of Judge
(Applicable to Superior Court and jury sessions in District Court.)
(a) During Trial
If by reason of death, sickness, or other disability the
judge before whom a jury trial has commenced is unable
to proceed with the trial, any other judge of that court or
properly assigned to that court, upon certifying in writing
that he has familiarized himself with the record of the trial,
may proceed with and finish the trial.
(b) Receipt of Verdict
Any judge of a court or any judge properly assigned
to that court may receive a verdict of the jury.
(c) After Verdict or Finding of Guilt
If by reason of absence, unavailability, death, sickness, or other disability the judge before whom the defendant has been tried is unable to perform the duties to be
performed by the judge after a verdict or finding of guilt,
any other judge of that court or properly assigned to that
court may perform those duties; but if the other judge is
satisfied that he cannot perform those duties because he
did not preside at the trial or for any other reason, he may,
in his discretion or upon motion of the defendant, order a
new trial.
NOTE
Rule 38(c). “In reliance upon Mass. R. Crim. P.
38(c), 378 Mass. 916 (1979), Baro argues that the sentencing
judge committed reversible error because he did not certify in
writing his familiarity with the trial record, had not reviewed the trial
transcript (still uncompleted), and did not discuss the reason for
the unavailability of the trial judge. Rule 38(c) does not require the
new judge to certify his familiarity with the trial record; it allows
substitution for a trial judge who ‘is unable to perform [his] duties’
not only by reason of ‘death, sickness, or other disability,’ but also
‘by reason of absence [or] unavailability’; and vests the newly
assigned judge with the ‘discretion’ to order a new trial if he ‘is
satisfied that he cannot perform [his] duties because he did not
preside at the trial or for any other reason.’” Commonwealth v.
Baro, 73 Mass. App. Ct. 218, 224 (2008).
3
628
Massachusetts Criminal Law Sourcebook & Citator 2013
RULE 39
Records of Foreign Proceedings and Notice of Foreign
Law
mestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a
foreign record, is admissible as evidence that the records
contain no such record or entry.
(c) Other Proof
This rule does not prevent the proof, by any other
method authorized by law, of the existence of, or the lack
of, an official record, or of entry, or lack of entry therein.
(Applicable to District Court and Superior Court.)
3
(a) Records of Courts of Other States or of the United
States
The records and judicial proceedings of a court of another
state or of the United States shall be competent evidence in
this Commonwealth if authenticated by the attestation of
the clerk or other officer who has charge of the records of
such court under its seal.
(b) Notice of Foreign Law
The court shall upon request take judicial notice of the
law of the United States or of any state, territory, or dependency thereof or of a foreign county whenever it shall
be material.
NOTE
“We take this opportunity, however, to recommend
strongly that copies of GPS records offered in future revocation
proceedings be properly attested and certified by an appropriate
custodial officer. See Mass. R. Crim. P. 40 (a), 378 Mass. 917
(1979). Such a certification will reduce, if not completely eliminate,
some of the legitimate concerns with regard to the authenticity of
the GPS records that were well raised during the revocation proceeding in this case.” Commonwealth v. Thissell, 457 Mass. 191,
199 (2010) (citation omitted).
RULE 40
Proof of Official Records
RULE 41
Interpreters and Experts
(Applicable to District Court and Superior Court.)
(a) Authentication
(1) Domestic. An official record kept within the
Commonwealth, or any entry therein, when admissible for
any purpose, may be evidenced by an official publication
thereof or by a copy attested by the officer having legal
custody of the record, or by his deputy. If the record is
kept in any other state, district, commonwealth, territory or
insular possession of the United States, or within the Panama Canal Zone or the Trust Territory of the Pacific Islands, any such copy shall be accompanied by a certificate
that such custodial officer has the custody. This certificate
may be made by a judge of a court of record of the district
or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any
public officer having a seal of office and having official
duties in the district or political subdivision in which the
record is kept, authenticated by the seal of his office.
(2) Foreign. A foreign official record, or an entry
therein, when admissible for any purpose, may be evidenced by an official publication thereof, or a copy thereof, attested by a person authorized to make the attestation,
and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate
of genuineness of signature and official position relates to
the attestation or is in a chain of certificates of genuineness
of signature and official position relating to the attestation.
A final certification may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to
the United States. If reasonable opportunity has been given
to all parties to investigate the authenticity and accuracy of
the documents, the court may, for good cause shown, (i)
admit an attested copy without final certification, or (ii)
permit the foreign official record to be evidenced by an
attested summary with or without a final certification.
(b) Lack of Record
A written statement that after diligent search no record or entry of a specified tenor is found to exist in the
records designated by the statement, authenticated as provided in subdivision (a)(1) of this rule in the case of a do-
(Applicable to District Court and Superior Court.)
The judge may appoint an interpreter or expert if justice so requires and may determine the reasonable compensation for such services and direct payment therefor.
NOTE
“Appointment of an interpreter lies within the sound
discretion of the trial judge and will not be disturbed on appeal
unless there was an abuse of that discretion. If two or more parties
require an interpreter in the same language, the better practice is
to have one interpreter and to pace the examination of the witnesses to allow time for the translation, thereby preventing parties
from receiving differing versions of the testimony. . . . [Lastly,] the
jury should be instructed that it is the interpreted testimony in English that is evidence and not their own translations.” Commonwealth v. Esteves, 46 Mass. App. Ct. 339, 345 (1999), rev’d on
other grounds, 429 Mass. 636 (1999) (citations and quotation
marks omitted).
RULE 42
Clerical Mistakes
(Applicable to District Court and Superior Court.)
Clerical mistakes in judgments, orders, or other parts
of the record and errors therein arising from oversight or
omission may be corrected by the court at any time of its
own initiative or on the motion of any party and after such
notice, if any, as the court orders. During the pendency of
an appeal, such mistakes may be corrected before the appeal is docketed in the appellate court, and thereafter while
the appeal is pending may be corrected with leave of the
appellate court.
RULE 43
Summary Contempt Proceedings
(Applicable to District Court and Superior Court.)
(a) Availability of Summary Proceedings
A criminal contempt may be punished summarily
when it is determined that such summary punishment is
necessary to maintain order in the courtroom and:
(1) the contemptuous conduct could be seen or heard
by the presiding judge and was committed within the actual
presence of the court;
(2) the judgment of contempt is entered upon the occurrence of the contemptuous conduct; and
(3) the punishment imposed for each contempt does
not exceed three months imprisonment or a fine of five
hundred dollars.
629
Massachusetts Rules of Criminal Procedure
(b) Nature of the Proceedings
Before making a judgment of contempt and imposing
punishment, the presiding judge shall give the contemnor
notice of the charges and at least a summary opportunity to
adduce evidence or argument relevant to guilt or punishment.
If the judge then determines that the sentence he would impose may be in excess of three months imprisonment or a
fine of five hundred dollars, he shall bind the contemnor
over for trial to be held in accordance with Rule 44. The
judgment of guilt of contempt shall include a recital of
those facts upon which the adjudication of guilt is based
and shall be signed by the judge and entered on the record.
Where the interests of orderly courtroom procedure and
substantial justice require, the presiding judge may defer
imposition or execution of sentence until after the trial is
completed.
(c) Appeal
The contemnor’s only right of appeal shall be to the
Appeals Court.
NOTE 1
See G.L. c. 233, § 20H.
NOTE 2
Warning unnecessary in cases of flagrant conduct.
“The Supreme Judicial Court has additionally held that unless the
conduct is ‘flagrant,’ a prior warning is required as a prerequisite to
treating the alleged contempt summarily. Sussman v. Commonwealth, 374 Mass. 692, 697 (1978) . . . .
“A warning is not a condition precedent to criminal contempt
in all cases . . . .
“We conclude here that the defendant’s conduct, although not
immediately interfering with the business of the court, was sufficiently flagrant so as to undermine the authority of the court to
constitute contempt.” Commonwealth v. Brunnell, 65 Mass. App.
Ct. 423, 424–28 (2006) (summary contempt proceeding appropriate where defendant yelled, “F*** you, judge; f*** you . . . . You
know what, judge? You can s*** my f***** d***” after denial of petition for bail).
RULE 44
Contempt
(Applicable to District Court and Superior Court.)
(a) Nature of the Proceedings
All criminal contempts not adjudicated pursuant to
Rule 43 shall be prosecuted by means of complaint, unless
the prosecutor elects to proceed by indictment. Except as
otherwise provided by these rules, the case shall proceed
as a criminal case in the court in which the contempt is
alleged to have been committed.
(b) Special Provisions for District Court
The District Court shall have jurisdiction to try all
contempts committed therein except those prosecuted by
indictment. Whenever a contemnor asserts his right to a
jury trial in District Court, the trial shall be held before a
jury in District Court. The contemnor’s only right of appeal shall be to the Appeals Court.
(c) Disqualification of the Judge
The contempt charges shall be heard by a judge other
than the trial judge whenever the nature of the alleged contemptuous conduct is such as is likely to affect the trial
judge’s impartiality.
RULE 45
Removal of the Disruptive Defendant
(Applicable to District Court and Superior Court.)
(a) Removal of Defendant
Upon the direction of the trial judge, a defendant may
be removed from the courtroom during his trial when his
conduct has become so disruptive that the trial cannot proceed in an orderly manner. Gagging or shackling may be
employed if the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the
case the reasons therefor. Whenever physical restraint of a
defendant or witness occurs in the presence of the jury
trying the case, or whenever the defendant is removed, the
judge, at the request of the defendant, shall instruct the
jury that such restraint or removal is not to be considered
in assessing the proof and determining guilt.
(b) Defendant’s Rights After Removal
A defendant once removed shall be required to be present
in the court building while the trial is in progress. At the
time of his removal he shall be advised that he has the
right to be returned to the courtroom upon his request and
assurances of good behavior. Notwithstanding the failure
of a defendant to request to be returned to the courtroom,
he shall be returned to the courtroom, at appropriate intervals in the absence of the jury, and shall be advised in
open court that he will be permitted to remain upon the
giving of assurances of good behavior.
RULE 46
Time
(Applicable to District Court and Superior Court.)
(a) Computation
In computing any period of time prescribed or allowed
by these rules, by order of court, or by any applicable statute or rule, the day of the act, event, or default after which
the designated period of time begins to run shall not be
included. The last day of the period so computed shall be
included, unless it is a Saturday, a Sunday, or legal holiday, in which event the period runs until the end of the
next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less
than seven days, intermediate Saturdays, Sundays, and
legal holidays shall be excluded in the computation. As
used in this rule, “legal holiday” includes any day appointed as a holiday by the President or the Congress of the
United States or so designated by the laws of the Commonwealth.
(b) Enlargement
When by these rules or by a notice given thereunder
or by order or rule of court an act is required or allowed to
be done at or within a specified time, the court for cause
shown may at any time in its discretion (1) with or without
motion or notice order the period enlarged if a request
therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or (2)
upon motion made after the expiration of the specified
period permit the act to be done where the failure to act
was the result of excusable neglect; or (3) permit the act to
be done by stipulation of the parties; but the court may not
extend the time for taking any action under Rules 25 and
29 except to the extent and under the conditions stated
herein.
(c) For Motions, Affidavits in Superior Court
A written motion, other than one which may be heard
ex parte, and notices of the hearing thereof shall be served
3
3
630
Massachusetts Criminal Law Sourcebook & Citator 2013
on all interested parties not later than seven days prior to
the hearing unless a different period is fixed by these rules
or by order of the court. For cause shown, such an order
may issue upon an ex parte application. When a motion is
supported by affidavit, the affidavit shall be served with
the motion. Opposing affidavits shall be served not later
than one day before the hearing, unless the court permits
them to be served at a later time.
trial motions for hearing, to make findings and report those
findings and other issues to the presiding justice or Administrative Justice, and to perform such other duties as may
be authorized by order of the Superior Court. The doings
of special magistrates shall be endorsed upon the record of
the case. Special magistrates shall be compensated in the
same manner as is provided by the General Laws for the
compensation of masters in civil cases.
RULE 47
Special Magistrates
RULE 48
Sanctions
(Applicable to Superior Court.)
(Applicable to District Court and Superior Court.)
The Justices of the Superior Court may appoint special magistrates to preside over criminal proceedings in the
Superior Court. Such special magistrates shall have the
power to preside at arraignments, to set bail, to assign
counsel, to supervise pretrial conferences, to mark up pre-
A willful violation by counsel of the provisions of
these rules or of an order issued pursuant to these rules
shall subject counsel to such sanctions as the court shall
deem appropriate, including citation for contempt or the
imposition of costs or a fine.